nesar, Author at TV EDWARDS - Page 8 of 30
TV EDWARDS SOLICITORS LLP

Parental Responsibility: School Choice Guide

Understanding the legal options for separated parents.

Our Services Contact Us
← Back to News & Blogs
11 June 2024
Katja Trela-Larsen
Trainee Solicitor
Paul Read
Partner - Head of Family Law
Blog Children Law Family

Deciding which school to send your children to is an important decision for any parent. Sometimes parents, often those who have separated, disagree when it comes to school choice for their children.

Each parent may have had very different experiences of education, and disagreements arise where what is best for their child in one parent’s eyes does not align with the other parent’s view. 

If you have tried and have been unable to reach an agreement on schooling for your child, you may be concerned as to who is entitled to make the final decision. The first thing to check is if you both have parental responsibility.

What is Parental Responsibility?

Parental responsibility is a legal concept which refers to the rights, duties and responsibilities that a parent has towards a child. Where both parents have parental responsibility, they both have a say in the choice of school and other important decisions regarding their child’s education.

Do I have parental responsibility?

A child’s birth mother will always automatically have parental responsibility.

If you are a father, you will have automatic parental responsibility if you were married to the child’s mother at the time of the child’s birth or your name appears on the birth certificate.

Same-sex partners will have parental responsibility, if you were married, or in a civil partnership, at the time of the fertility treatment and satisfy the conditions of Human Fertilisation and Embryology Act 2008.

Adopted parents have parental responsibility from the date of the Adoption Order. The Adoption Order also removes parental responsibility from the birth mother and anyone else who previously had it.

If you don’t automatically have parental responsibility, you can obtain it by entering into a parental responsibility agreement, or you can apply for a parental responsibility order through the court.

Birth Registration and Parental Responsibility

Birth registration plays a key role in establishing parental responsibility. For many parents, particularly unmarried fathers, being named on the birth certificate is what grants legal parental rights. 

Delays to registration, such as those seen during the Covid-19 pandemic, can therefore affect when and how parental responsibility is acquired. It is important to understand who automatically has parental responsibility and the circumstances in which it can be obtained.

Normally, births have to be registered with the local council within 42 days of the child being born. 

Aside from practical issues such as not being able to apply for a passport, this will result in unmarried fathers not having parental responsibility for the child until the birth is registered and only then if they are named on the child’s birth certificate.

The Children Act 1998 abolished the terms of custody, care and control and access and introduced the concept of “parental responsibility” which is defined as “all the rights, duties and powers, responsibilities and authorities which by law a parent has in relation to the child and his property”. 

For instance, all people with parental responsibility have the right to be consulted about important decisions in the child’s life, such as education, medical treatment, change of name and trips abroad.

What are My Legal Options in Regards to Parental Responsibility? 

Ultimately, the court can make decisions about where a child should go to school, but there are a number of steps to consider before making an application to the court.

TV Edwards experienced family lawyers will be able to advise you on your options, including alternatives to court, for example, mediation or arbitration. We can also negotiate on your behalf on school choice with the other parent or their legal advisor to see if you can reach an agreement.

In most cases, before any application to court, it’s mandatory to attend an initial Mediation Information and Assessment Meeting (MIAM). You can either go to the MIAM alone or with the other parent if you both agree to attend together.

At the MIAM a specially qualified family mediator will provide you with information about the options available for non-court resolution and discuss the advantages and disadvantages with you. The purpose of the MIAM is to determine whether non-court resolution is appropriate and gauge whether it’s possible to resolve the issue without court intervention.

Family arbitration, for example, is a form of non-court dispute resolution where you and the other parent would agree to appoint a third party, an arbitrator, to make a decision on schooling for you. You can either agree on the choice of arbitrator or you can ask the Institute of Family Law Arbitrators (IFLA) to choose one for you. You and the other parent also have control over deciding how the proceedings will run, for example, choosing the venue, whether to meet face to face or each put your case forward through writing only. Where arbitration is agreed, the flexibility and the fact that you will get a final decision much more quickly can make arbitration more cost-effective than court.

The last resort for parents who disagree on school choice for their children is to make an application to court, you may want to seek a Specific Issue Order and/or Prohibited Steps Order. An application can be made for either or both orders, depending on what is most appropriate for your circumstances.

Specific Issue Order: This is an application to the court for an order which deals with something specific in respect of a child, which can include deciding on which school the child attends.

Prohibited Steps Order: This is an application to the court for an order to stop someone from exercising their parental responsibility in a particular way, which can include asking the court to prevent your former partner from moving your child to a new school.

If non-court options like mediation or arbitration do not lead to an agreement, the matter may proceed to court. Understanding what to expect during court proceedings can help parents prepare and make informed decisions about the welfare of their child.

What To Expect At Court

The court should issue the application on an urgent basis, depending on the timescales involved, and list an initial hearing.

This initial hearing is known as a First Hearing Dispute Resolution Appointment (FHDRA). The Court will look at what the issues are and give directions about how the case should proceed. Often, each parent is directed to produce a witness statement.

The Children and Family Court Advisory and Support Services (Cafcass) will undertake safeguarding checks and may be asked to prepare a report for the court. Cafcass is an independent body that advises the courts on what is considered to be in the best interests of individual children involved in family proceedings. 

The Cafcass officer may speak to your child to ascertain their wishes and feelings (if your child is old enough and able to make their wishes and feelings reasonably clear).

Often, an agreement is reached when both parents have seen the report prepared by Cafcass. However, if there is no agreement, the case will proceed to a final hearing. The Court will hear the evidence from the parties involved, the Cafcass officer, and other experts (if required) to make a binding decision.

The court’s paramount consideration is the welfare of the child. Section 1(3) of the Children Act 1989 contains a list of factors the court should consider when determining any question in respect of the upbringing of a child. This is known as the ‘welfare checklist’ and includes consideration of:

• the ascertainable wishes and feelings of the child;

• the child’s physical, emotional and educational needs;

• the likely effect of any change in circumstances;

• the child’s age, sex, background and any characteristics which the court considers relevant;

• any harm which the child has suffered or is at risk of suffering; and

• the ability of each parent to meet the child’s needs.

The Court must also be satisfied that making the order is better for the child than not making any order at all.

Before the court can make decisions on issues such as schooling or other disputes, it is crucial to establish who has legal authority over the child. This is where parental responsibility comes in. 

Parents may need to formalise their rights through parental responsibility agreements or seek a parental responsibility order from the court, ensuring that they are legally entitled to participate in key decisions affecting their child.

Establishing Parental Responsibility

When disputes over school choice reach the court, it is essential first to establish parental responsibility. This ensures that each parent’s legal rights and duties are recognised before any decision affecting the child is made.

While court applications such as Specific Issue Orders or Prohibited Steps Orders deal with disagreements over decisions like schooling, some parents may first need to establish their legal status in relation to the child. 

This is where parental responsibility agreements and parental responsibility orders become important, as they determine who has the legal authority to be involved in making those key decisions.

Parental responsibility agreements

A parental responsibility agreement must be in a prescribed form and signed by both parties in the presence of a Justice of the Peace or a court official authorised to administer such documents. The mother must produce the full birth certificate and each parent must produce evidence of identity which bears their photograph and signature. The agreement must then be registered at court.

Once a parental responsibility agreement has been made it can only end by:

  • An order of the court made on the application of any person who has parental responsibility for the child.
  • By an order of the court made on the application of the child with permission of the court.
  • When the child reaches the age of 18.

Parental responsibility order

If the father without parental responsibility wants to share parental responsibility with the birth mother and she is not willing to agree to this, the father can apply to court for a parental responsibility order. Such an order will give him joint parental responsibility with the mother. 

The court will take into account the principle that the interests of the child are of paramount importance. The court will also consider whether the making of an order is better for the child than making no order at all.  Beyond this there are three criteria that have been developed by judges through case law in determining applications for parental responsibility in respect of a child’s father and these are:

  • The degree of commitment which the applicant has shown towards the child.
  • The degree of attachment which exists between the applicant and the child.
  • The reasons for the applicant applying for a parental responsibility order.

Where the court finds that a father’s reasons for wanting parental responsibility are ‘demonstrably improper or wrong’ or that the father intends to use parental responsibility for improper or inappropriate ends, for example, to try to interfere with and possibly undermine the mother’s care of the children, then the court retains the discretion to refuse to make an order.

How TV Edwards Can Help

TV Edwards’ expert family team are on hand to help you navigate the law around parental responsibility and your children’s education and schooling. Our approach is always child-focused and our clients always come first. We focus on delivering affordable, first-class legal services, with exceptional levels of client service.

Please contact the team by emailing family@tvedwards.com or call 0203 440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

Freezing Injunctions: Domestic and Worldwide Applications

Partner Adam Haffenden gives an expert view and comprehensive guide

Our Services Contact Us
← Back to News & Blogs
6 June 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Blog Dispute Resolution

Freezing injunctions, also known as freezing orders or Mareva injunctions, are potent legal remedies used to prevent a defendant from dissipating assets in a manner that could undermine the enforcement of a potential judgment. These injunctions can be either domestic, applying within a single jurisdiction, or worldwide, extending across multiple jurisdictions. This article explores both types of injunctions, their applications, legal frameworks, and strategic considerations.

What is a Domestic Freezing Injunction

A domestic freezing injunction is a court order that restrains a defendant from disposing of or dealing with assets within the jurisdiction of the issuing court. The primary purpose is to preserve the status quo and ensure that the defendant’s assets remain available to satisfy a potential judgment. Legal Framework in jurisdictions like the UK, domestic freezing injunctions are rooted in common law and governed by procedural rules such as the Civil Procedure Rules (CPR).

The key requirements for obtaining a domestic freezing injunction include:

  1. Good Arguable Case: The claimant must demonstrate a solid foundation for their underlying claim.
  2. Risk of Dissipation: Evidence must be presented showing a real risk that the defendant will dissipate their assets to frustrate the enforcement of a judgment.
  3. Just and Convenient: The court must be convinced that it is just and convenient to grant the injunction.

The process of obtaining a domestic freezing injunction typically involves filing an application. The claimant files an application supported by an affidavit detailing the facts of the case, the nature of the claim, and evidence of the risk of dissipation.

Ex-Parte Hearing: Often, the application is heard ex parte (without the defendant being present) to prevent the defendant from taking pre-emptive action. After the initial order is granted, a return date is set for a full hearing where the defendant can challenge the injunction.

What is a Worldwide Freezing Injunction

A worldwide freezing injunction (WFI) extends the restraint on the defendant’s assets globally, beyond the borders of the jurisdiction where the order is issued. WFIs are crucial in international litigation involving assets spread across multiple countries. WFIs originate from English common law, with the landmark case Mareva Compania Naviera SA v International Bulkcarriers SA [1975] establishing their foundations. The principles set forth in this case have influenced jurisdictions worldwide.

To obtain a WFI, the claimant must meet similar requirements as for domestic injunctions, but with added considerations for the international scope.

Application Process

The process of obtaining a WFI is more complex due to its international implications. When filing an application, it is similar to domestic injunctions, but with additional evidence regarding the international aspects of the defendant’s assets. The initial hearing is typically ex-parte to prevent asset dissipation. Once granted, the injunction must be notified and enforced in foreign jurisdictions, which may require local legal proceedings.

Choosing a Domestic versus a Worldwide Injunction

The choice between a domestic and worldwide freezing injunction depends on the location of the defendant’s assets and the nature of the claim. If assets are located solely within one jurisdiction, a domestic injunction suffices. However, if assets are spread across multiple jurisdictions, a WFI is necessary.

Enforcement Challenges

Enforcing a WFI involves navigating different legal systems, which can be complex and time-consuming. Co-operation with local legal experts is essential to ensure effective enforcement.

Both types of injunctions carry risks of non-compliance by the defendant, leading to potential contempt of court proceedings. Additionally, wrongful freezing orders can result in significant damages against the claimant, emphasising the need for careful consideration and solid evidence before seeking an injunction.

Adam Haffenden’s Expertise

Adam Haffenden who is a Partner and Head of Dispute Resolution at TV Edwards LLP is a prominent legal practitioner renowned for his significant experience and expertise in dealing with freezing injunctions and cross border enforcement of foreign judgments.

His career highlights include:

High-Profile Cases: Adam has represented clients in several landmark cases involving WFIs and domestic freezing injunctions, providing strategic advice on obtaining, enforcing, and challenging these injunctions.

Cross-Border Expertise: Given the global nature of WFIs, Adam’s ability to navigate multiple jurisdictions has been pivotal in securing and enforcing orders internationally.

Advisory Roles: He has advised major corporations and high-net-worth individuals on the complexities and implications of WFIs, ensuring compliance and protecting their interests.

Scholarly Contributions: Adam has authored articles on the subject, contributing to the legal community’s understanding of freezing injunctions in the UK. His insights have been featured in a leading London business journal.

Recent Freezing Injunction Work

Case Study 1: Asset Protection in Fraud Litigation and Cross border Enforcement.
In a notable case, Adam successfully obtained a Worldwide Freezing Injunction against several defendants in a multi-million-pound civil fraud case. His meticulous preparation and persuasive arguments with his legal counsel convinced the court of the imminent risk of asset dissipation, securing his client’s position and ensuring the assets remained available for potential recovery in the foreign jurisdiction. His client commented:

“Adam you were absolutely fantastic when dealing with our fraud case and the way you secured a worldwide freezing injunction against the defendants, we cannot thank you enough for your hard efforts. Highly recommend Adam for any litigation work“.

Case Study 2: Domestic Freezing Injunction.
In another recent case, Adam succeeded with obtaining a freezing injunction against a defendant, who had been detained in a Chinese prison further to a judgment being obtained by Adam’s client in China, which they sought to obtain a reciprocal judgment in the UK to enforce against UK based assets the defendant owned in this jurisdiction up to value of £5.5 million.

Case Study 3: Domestic Freezing Injunction.
Adam won another recent freezing injunction case which froze the defendant’s assets in the UK up to the value of £75,000 which the defendant had indicated she was going to be dissipating. This resulted in all of the client’s money being returned to the client directly from the defendant’s bank account to enable the injunction to be lifted and was another seamless outcome for Adam and his litigation team. The delighted client wrote the following testimonial.

“I cannot express how relieved and grateful I am after securing a freezing injunction with the assistance of my legal team. When I discovered the imminent threat to my assets, I was overwhelmed with stress and uncertainty. However, from the moment I engaged Adam Haffenden, his expertise and dedication was evident. Adam with support from his team, meticulously gathered the necessary evidence, crafted a compelling case, and navigated the complex legal process with precision and confidence. The court’s decision to grant the freezing injunction was a pivotal moment, providing me with immediate protection and peace of mind. This success not only safeguarded my assets but also prompted the defendant in agreeing to release all outstanding monies owing to me from her bank account. I extend my heartfelt thanks to my legal team for their unwavering support and exceptional skill in achieving this crucial outcome. I highly recommend Adam Haffenden’s services to anyone facing similar challenges, he really is at the top of his game in this area of law”.

How we can help

Adam’s Haffenden’s significant experience and expertise make him a leading authority in this area, capable of navigating the intricate legal and practical challenges these injunctions present.

Should you be looking to obtain or defend a domestic or worldwide freezing injunction contact Adam Haffenden on 0203 440 8139 or email adam.haffenden@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

TV EDWARDS SOLICITORS LLP

When the Court of Protection may be more appropriate than the County Court in housing matters

It can make decisions on behalf of the person who lacks capacity so in their best interests.

Our Services Contact Us
← Back to News & Blogs
4 June 2024
Emily Black
Associate Solicitor
Blog Court of Protection

This article discusses a recent case in which Social Welfare solicitor Emily Black represented a disabled tenant who was facing eviction from his home. His Housing Association landlord was trying to evict him due to alleged breaches of his tenancy, specifically, his refusal to temporarily vacate his home to allow works to be carried out.

Housing issue

Our client had been diagnosed with paranoid schizophrenia and has a history of lack of engagement with professionals, including not allowing professionals into his home. Part of the ceiling in one of the rooms of his home had collapsed, and the landlord wanted to carry out works to repair this issue, due to poor housing conditions. The landlord said they could not carry out the works whilst our client lived at the property, and so they asked him to temporarily vacate his home so that the works could take place. Unfortunately, our client did not agree to this.

The landlord initially sought to obtain an injunction against our client to force him to temporarily vacate his home. However, it became apparent that our client did not have the capacity to comply with this injunction, and so the application was not pursued.

At this stage, given the issues with our client’s capacity, it would have been more appropriate for the landlord to approach the local authority to ask for an assessment to be carried out regarding our client’s capacity to make a decision to temporality vacate his home. If the local authority decided that he did not have the capacity to make this decision they could have a made a decision in his best interests. If our client had still not agreed to this, an application to the Court of Protection would have been necessary for the approval of a transition plan. Alternatively, if a capacity assessment could not have been carried out by the local authority, then an application could have been made to the Court of Protection for the Court to make declarations as to our client’s capacity, and then approval of a transition plan. It would have been open to the local authority or indeed even the landlord to make these applications to the Court of Protection.

The Role of The Court of Protection

The Court of Protection is a court which is dedicated to making decisions on financial matters or welfare issues for people who cannot make decisions at the time they need to be made i.e., because they lack the mental capacity to do so. One of the values of the Court of Protection is that it can make decisions on behalf of the person who lacks capacity, ensuring that the decision is in that person’s best interests, is the least restrictive option for them, and with the appropriate safeguards in place.

In the circumstances of the case discussed in this article, eviction through the County Court would involve Bailiffs (and possibly the police) changing the locks on the property, meaning our client would be removed from his home against his will, resulting in his homelessness. This would have been incredibly distressing for our client. We argued that the value of the Court of Protection in this case would have been that the parties could work collaboratively to work out the best way to enable our client to move temporarily, and to ensure that the landlord could enter the property and carry out the works, with minimal distress caused to our client.

Unfortunately, despite being aware of the capacity concerns and our client’s disability, the landlord in this matter continued to seek to evict our client through the county court.

During the case, this firm contacted the relevant NHS Trust and subsequently the local authority, asking that they make an application to the Court of Protection. We continued to chase the local authority until an application was made to the Court of Protection. Ultimately, with the input of the local authority, the landlord, and our client’s sister, the Court of Protection made a decision that it was in our client’s best interest to move to temporary accommodation whilst the works were carried out, and approved a transition plan to ensure that this move took place in the least restrictive way to our client. Our client was able to move temporarily without excessive distress to him, and the works in his home were completed.

The Court of Protection also made an order requiring the local authority and the NHS Trust to explain why there had been a delay in making this application to the Court of Protection, and what steps will be taken to stop such a delay arising again in similar circumstances in future.

As landlords are no doubt aware, they will be discriminating against a disabled tenant if they decide to issue possession proceedings against that tenant due to something arising out of their disability, and if they cannot prove that seeking possession is a proportionate means of achieving a legitimate aim. A landlord would likely not be able to prove this if there may be a lesser measure than eviction that could achieve that aim. This case shows that in certain cases, the Court of Protection may be able to provide that lesser measure than eviction, achieving a positive outcome for all parties.

How we can help

To find out more about how TV Edwards could help with your Housing Law issue or if you need support applying to the Court of Protetction. contact us at enquiries@tvedwards.com or speak to a member of our Social Welfare team on 020 3440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Housing Solicitors
TV EDWARDS SOLICITORS LLP

Understanding Vesting Orders for Absent Freeholders

A Vesting Order allows transfer of the ownership of a property from one party to another.

Our Services Contact Us
← Back to News & Blogs
17 May 2024
TV Edwards Blog
Blog Dispute Resolution

Owning a leasehold property in England and Wales is not always straightforward. Sometimes leaseholders end up in situations where the legal owner of a property is absent or cannot be located. In cases where the property needs to be managed, sold or transferred, it complicates matters. Where a property has an absent freeholder, the correct procedure is to apply to Court for what we call a “Vesting Order”. In this article, Disputes Resolution lawyer Leo Mineo who provides specialist advice on property management issues, will explain the concept of Vesting Orders for absent freeholders, exploring what it means and how it works.

What is a Vesting Order

A Vesting Order is issued by the Court and allows transfer of the ownership of a property from one party to another. Where there is an absent Freeholder who is missing, unresponsive or incapacitated, it facilitates the management or disposal of properties.

Leaseholders are provided authority by The Leasehold Reform, Housing and Urban Development Act 1993 to seek a Vesting Order. This Act authorises leaseholders to buy the property’s freehold or alternatively enables them to secure an extension to their lease agreement, which can help with selling the Property.

This would enable the leaseholder (i) to extend the lease or (ii) to buy the Freehold together with some fellow Leaseholders in order to then sell the property (iii) to manage the property.

When a Vesting Order may be necessary

Vesting Orders apply to several scenarios where the freeholder is absent:

  1. Probate: If the owner passes away without leaving a will or if the beneficiaries cannot be located, a Vesting Order may be sought to transfer ownership of the property to the appropriate parties.
  2. Abandonment: If a property owner has abandoned the property and cannot be located, a Vesting Order may be necessary to enable the property to be sold or managed effectively.
  3. Missing or incapacitated owner: In situations where the legal owner of a property is missing or incapacitated, a Vesting Order can provide a legal mechanism for transferring ownership to a trustee or other designated party who can manage the property on behalf of the absent owner.

How does a Vesting Order work

In order to obtain a Vesting Order, the parties must apply to the relevant authority, usually the County Court. The application must contain the details of the case, the reasons why a Vesting Order is being sought and the supporting evidence or documentation.

For a Vesting Order, the Court must be satisfied that:

  1. The tenants are qualifying tenants;
  2. The premises qualify;
  3. At least two third of the qualifying tenants are part of the claim; and
  4. The tenants have taken all reasonable steps to try and locate the absent Freeholder

Once the application is filed with the Court, the case will be reviewed in order to assess if a Vesting Order is appropriate. To do so, the Court will need to review evidence, and consider the interests of any third parties affecting by the application, which may require a hearing.

When the Court has completed their assessment, they may issue a Vesting Order with specific terms and conditions as to the transfer of ownership. It may include appointing a trustee or other responsible party to manage the property on behalf of the absent freeholder.

Benefits of Vesting Orders

The key benefits of Vesting Orders include:

  1. Clarity: transferring a property ownership through the Court offers clarity and certainty regarding the ownership of the property.
  2. Protecting interest: the interests of all parties involved are protected by ensuring that property is managed and disposed of in accordance with the law and in the best interest of the absent freeholder.
  3. Facilitation of transactions: In cases where property needs to be sold or transferred, the process can be streamlined by providing a clear legal mechanism for the transfer of ownership.

How we can help

Vesting Orders are a valuable tool, enabling the effective management and disposal of properties where the legal owner is missing or unresponsive. This legal mechanism for transferring ownership, ensures that properties are managed and disposed of in accordance with the law and by protecting the interests of all parties.

Should you need assistance with an absent freeholder, please feel free to contact the highly experienced Property Disputes lawyers by emailing disputeresolution@tvedwards.com or call 020 3440 8000 for us to help you through the process to managing or disposing of your property.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Property Disputes Solicitors
TV EDWARDS SOLICITORS LLP

Judicial Separation: An Alternative to Divorce

Divorce is not the only mechanism available to couples wishing to formally separate.

Our Services Contact Us
← Back to News & Blogs
9 May 2024
Lee Giles
Associate Solicitor
Blog Divorce and Family Finance

Divorce is not the only mechanism available to couples wishing to formally separate. Judicial separation offers an alternative avenue, providing clarity on its processes and implications. This article delves into what judicial separation entails, its differences from divorce, and why it might be preferable for some couples.

Understanding Judicial Separation

Judicial separation is a formal separation between parties who are married or those in a Civil Partnership which is sanctioned by the Court via a Court Order. As a result, the separating parties are able to end their obligations towards each other and separate their finances. Just like a divorce, an application for judicial separation gives the Court power to make orders concerning the assets and liabilities of the parties. The two key differences are the types of orders which the Court can make and the fact that in Judicial separation proceedings the marriage is not terminated. These two differences are explored below.

Initiating Judicial Separation

The process of judicial separation is very similar to that of divorce although the 12 month gap between the date of marriage and application does not apply.

A formal application will need to be made by one of the parties (or both via agreement). This form is called Application for (Judicial) Separation or a “D8S”. The Court will not consider whether the marriage has “broken down irretrievably” and as a result of the new no-fault divorce legislation there is no need to rely on one of the 5 traditional factors namely; adultery, unreasonable behaviour, two years separation with consent, 5 years separation or desertion. The Applicant merely needs to state that they seek a judicial separation and once the application is issued and finalised a decree pronouncing formal separation will be made by the Court. However, unlike the equivalent document issued at the end of divorce proceedings (Final Order of divorce) the marriage is not legally terminated.

Financial Implications

Despite the separation, the court retains the authority to issue financial orders, dictating the division of assets and liabilities. However, unlike divorce, the court cannot issue Pension Sharing Orders, and financial claims between the parties remain open for future resolution, given the marriage’s legal continuity.

Advantages of Judicial Separation

  1. Maintained Marital status: For individuals with moral or religious objections to divorce, judicial separation allows for formal separation while retaining the legal status of marriage.
  2. Cost and time efficiency: Judicial separation is quicker and less expensive than divorce. This is due to the court fee being lower and the judicial separation process not requiring a “conditional order stage”.
  3. Early application: You can apply for judicial separation within the first 12 months of your marriage. This is not the case for divorce.
  4. Inheritance and Tax benefits: The spousal inheritance tax exemption (£325,000) still applies following decree pronouncing formal separation. Once your Final Order of divorce is pronounced this exemption ends immediately.
  5. Continued benefits: If your spouse has a Will in place naming you as a beneficiary and they pass away following decree pronouncing formal separation without executing another Will, you will still benefit.

Considering Alternatives

Opting for judicial separation doesn’t preclude future divorce proceedings or being able to dissolve a Civil Partnership. Couples can pursue divorce and accompanying financial orders if circumstances change, such as a need for pension sharing or resolution of financial claims. The only condition being that you and your spouse have been married for at least 12 months. This flexibility ensures that couples can adapt their legal arrangements to evolving needs and circumstances.

How we can help?

Navigating separation, whether through divorce or judicial separation, can be complex. TV Edwards’ family team has extensive experience in this legal area and can provide invaluable assistance in understanding the nuances of each option and determining the best course of action tailored to individual circumstances.
Please contact the team by emailing divorce@tvedwards.com or call 0203 440 8000.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Family Finance Solicitors
TV EDWARDS SOLICITORS LLP

An important modern families case: Why a sperm donor agreement is unreliable

This case highlights the importance of taking legal advice prior to conception.

Our Services Contact Us
← Back to News & Blogs
26 April 2024
Anest Mathias
Associate Solicitor
Amanda Mhlanga
Solicitor
Blog Family Modern Parenting, Surrogacy, Fertility and Adoption

Associate family lawyer Anest Mathias, assisted by trainee Amanda Mhlanga, instructed James Turner KC, Naomi Wiseman and Joe Landman to represent the applicant in P v Q and Others [2024] EWFC 85 (B)(Fam) – an important ‘modern families’ case – with judgment handed down by Mrs Justice Gwynneth Knowles on 19 April 2024. The respondent then appealed. Our client was represented by the same legal team in the Court of Appeal with judgment being handed down on 26 July 2024 P v Q and F (Child: Legal Parentage) [2024] EWCA Civ 878

Our client, P, was in a female same sex marriage with Q. They wanted a child, it was agreed that P would carry their child. Initially they attempted to conceive using sperm ordered and imported online from a clinic in Denmark. This method was unsuccessful as well as expensive. They sought a known donor and placed an advert online finding F. They met F and formed a favourable impression of him. The parties signed a “Sperm Donor Agreement” obtained online. F agreed not to demand or seek any parental rights in respect of the child conceived through the artificial insemination (“AI”) process. This document has no legal status whatsoever.

There were two unsuccessful attempts of AI using F’s sperm, the two unsuccessful attempts of AI left P feeling unhappy, desperate and placed her relationship with Q under great strain. P reached out for comfort from F and arranged to meet him at her parents’ home. P found F friendly and sympathetic and whilst at her parent’s home, P initiated sexual intercourse or natural insemination (NI) with him. P and F had sex a total of three times at her parents’ home. Q was not aware of P and F’s meeting, nor about the NI.

The third and final attempt of AI took place a day or two after P and F had sexual intercourse. P found out that she was pregnant a couple of weeks later with X.

P and Q were registered as the parents of X. By arrangement with P and Q, F saw X once before P and Q separated. P and Q separated and subsequently divorced. Following their separation P began communicating regularly with F and he became involved in X’s life. X knows F is her biological father.

Following the breakdown of P and Q’s relationship, court proceedings were issued to determine the child arrangements for X. P and Q disagreed as to the involvement of F in X’s life. P then asserted her belief that X was conceived as a result of sexual intercourse rather than AI. The judge was satisfied that P and F had had sexual intercourse on several occasions prior to the third attempt at AI for which F acted as a sperm donor. She was unable to find on a balance of probabilities whether X was conceived by AI or NI.

A child can have a maximum of two legal parents. P would always be X’s legal mother. The question which the court had to determine was who in law was X’s second parent.

If X had been conceived through AI then Q would be her legal parent by virtue of the s.42 of the Human Fertilisation and Embryology Act 2008 which states that:

“If at the time of placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership with another woman or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

If X had been conceived through NI then F would be X’s legal father.

There are no reported cases where the court has had to determine who would be a child’s legal parent when the method of conception could not be determined as was the case here.

There is a common law presumption that a child born to a woman during a marriage is also the child of her husband. This can be displaced with evidence to the contrary, such as DNA testing. The Marriage (Same Sex Couples) Act 2013 specifically does not extend this common law presumption and so the fact that P and Q were married did not create a presumption that X is Q’s legal child.

The starting point at common law is that P is X’s mother and that F, her biological father is her father. This remains the case unless it could be displaced by the provisions of the Human Fertilisation and Embryology Act 2008.

The judge considered a number of cases where the requirements of the Human Fertilisation and Embryology Acts have been examined. Case law has consistently upheld the need for compliance with Act. The Act only governs situations within its footprint which included the requirement for the child to have been carried by a woman as a result of the placing in her of an embryo or of sperm and eggs or her artificial insemination, to determine who is to be treated as the other parent of the child. Section 42 of the Human Fertilisation and Embryology Act 2008 creates a rebuttable presumption that consent exists in the case of a marriage and that assisted reproduction is the method of conception. That presumption can be rebutted by evidence which shows that consent has not been given and / or that assisted reproduction may not have occurred. The judge had found that Q did not consent to anything other than assisted reproduction, but the method of X’s conception was unclear. In those circumstances the presumption of Q’s parenthood was rebutted, and the common law position applied.

The Judge made the declarations sought by P, namely that F is the legal parent of X, and that Q is not X’s legal parent.

Q then sought to appeal the decision to the Court of Appeal and was granted permission to appeal on the basis that the learned judge misdirected herself as to the party upon whom the burden of proof lay in an application for a declaration of non-parentage and/or a declaration of parentage. Ultimately the appeal was dismissed.

Lord Justice Peter Jackson gave the judgment. He agreed that there were some difficulties with the judge’s reasoning but that they are inessential to the conclusions and he dismissed the appeal.

The case was described as unprecedented.

The judge was right to start from the position that a child’s parentage will be defined by the common law, unless it is displaced by the statutory provisions regulating parentage in cases of assisted reproduction.

The baseline position at common law is that a child’s legal parents are the gestational mother and the genetic father. The common law modifies the principle in relation to a married man who benefits from a rebuttable presumption of parenthood in respect of a child born to his wife during the marriage. This has been extended to apply to male civil partners but there is no such presumption in respect to a child born during the marriage of two women.

The baseline position is also modified by certain provisions of the Human Fertilisation and Embryology Act 2009 and its predecessors in relation to a child born following assisted reproduction. For the parenthood provisions of the Human Fertilisation and Embryology Act 2008 the child has to be born as a result of assisted reproduction and that is a foundational condition.

Although Q had been registered on X’s birth certificate this did not create a presumption of legal parentage.

At common law P is X’s legal mother. X’s genetic father will be her legal father. The burden on P was to show that F was the genetic father and that there had been NI at the relevant time. After that, it was for Q to establish that she has the benefit of legislation.

This case is exceptionally unusual because the outcome turns on the burden of proof. In other cases involving both AI and NI the evidence may find one means of conception more probably than the other and medical evidence may assist in distinguishing between them. In this case there is nothing intrinsically surprising that X’s genetic parents are her legal parents.

Mrs Justice Gwynneth Knowles introduced the case by stating:

“This case is a cautionary tale about the consequences for a child and for a same-sex couple of both deceit as to how that child came to be conceived and the unreliability of informal arrangements for artificial insemination. The fallout from this couple’s separation has been devastating for each of them and for their named sperm donor.”

We wholeheartedly agree.

Lord Justice Jackson wrote: “Notwithstanding Q’s commitment to X, her understood status as a legal parent arose from informal arrangements, with all their inherent risks.”

This case highlights the importance of taking legal advice prior to conception and understanding the need for compliance with the parenthood provisions of the Human Fertilisation and Embryology Act 2008. As in the case of M v F & H (Legal Paternity) [2013] EWHC 1901 (Fam) it should not be forgotten that a much wanted child has been born. The Court of Appeal noted that at the welfare hearing all outstanding matters were resolved and that the judge’s order leaves all three adults with parental responsibility for X.

How we can help?

In our modern society, there are a number of different routes to parenthood. We advise intended parents and donors about the legal implications of the routes they are considering or have chosen. For further information or a preliminary chat about modern parenting, please contact Anest Mathias on 020 3440 8049 or Anest.Mathias@tvedwards.com.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Family Finance Solicitors
TV EDWARDS SOLICITORS LLP

Our Ready to Sell Pack helps you sell faster

The traditional conveyancing process can be lengthy and time-consuming.

Our Services Contact Us
← Back to News & Blogs
26 April 2024
Sophie Banks
Solicitor Apprentice
Blog Conveyancing

The traditional conveyancing process can be lengthy and time-consuming, with sales taking an average of 4-6 months from listing to completion . As conveyancers, we play a crucial role in navigating through the legal aspects of the transaction. This involves legal and administrative steps that must be followed including searches, inquiries and documentation.
The length of time it takes for a sale to complete is dependent upon many factors. However, there are steps that can be taken to significantly speed things up.

How we can help?

TV Edwards’ Ready to Sell Pack is an innovative solution which dramatically reduces transaction times. The pack collates the legal documents and information which may concern the buyer’s solicitor at the earliest stage. This means that once an offer is accepted and the seller is ready to proceed, the work is already done. Overall, this makes for a far more pleasant and straight-forward selling experience for all parties.

What is included?

Our pack includes everything that would be expected in a traditional conveyancing sale such as the draft contract, transfer deed, title deeds and Law Society Protocol Forms. In addition, we provide a report to the buyer’s solicitor pre-empting protocol compliant enquiries which might be raised and solutions to defects, for example draft indemnity policies. This combination has been designed to reduce the time spent raising enquiries and ensure that the sale process is as swift and efficient as possible.

What does this mean for Sellers?

Our Ready to Sell Pack is one of the first of its kind and has unsurprisingly sparked a lot of interest.

Our team were recently instructed to create a Ready to Sell Pack for a client who was selling their property. Since a large amount of the legal work was carried out before the client had found a buyer, by the time a buyer was found it took just one week to prepare the file for exchange! There was little need for enquiries as we had already anticipated the concerns of the buyers’ solicitor and prepared the necessary documentation.
If you are interested in our Ready to Sell Pack and would like to find out how we could assist you, please get in touch with the property team.

You can contact us on 0203 440 8000 or email property@tvedwards.com for more information.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Ready to Sell Pack Selling a Property
TV EDWARDS SOLICITORS LLP

How to avoid Civil Fraud: Guidance for Businesses

Civil fraud can be defined as “a deceptive act committed to gain an unfair advantage”.

Our Services Contact Us
← Back to News & Blogs
23 April 2024
Adam Haffenden
Partner - Head of Dispute Resolution
Blog Commercial Litigation Dispute Resolution

In the complex world of businesses, the threat of civil fraud poses a significant risk to the integrity and reputation of companies. Enterprises must remain vigilant and proactive in fighting fraud. This article serves as a comprehensive guide for businesses, offering inputs into the nature of civil fraud, its consequences, and approachable strategies for preventing it.

Definition

Civil fraud can be defined as “a deceptive act committed to gain an unfair advantage”. Unlike criminal fraud, civil fraud involves disputes between private parties seeking damages or restitution.

To establish civil fraud, four elements must be demonstrated:

  1. Material Misrepresentation: false information or hidden material facts were provided with the intent to deceive.
  2. Intent to Deceive: There must be a verifiable intent to manipulate, deceive, or defraud the victim.
  3. Reliance: The victim reasonably relied on the misrepresentation or concealment.
  4. Damages: The victim suffered quantifiable harm or losses as a result of the above.

Civil fraud in a business context

In economically uncertain conditions, businesses tend to think more about innovation, growth and survival rather than risk management, due diligence and internal fraud prevention controls. But this approach leaves businesses particularly exposed to fraud, with many owners unaware of the risks their businesses face.

Civil fraud within businesses includes practices aimed at gaining an unfair advantage or causing harm to shareholders. It usually includes financial statement fraud, embezzlement, insider trading, and procurement fraud. The main actors can include anyone trying to exploit vulnerabilities within the companies.

The cost of fraud

The impact of fraud on businesses can be substantial and might lead to financial loss, legal liabilities, or even reputational damage. Beyond the main losses the companies may suffer, civil fraud also threatens the relationship between shareholders, investors, regulators, and customers. Companies may end up facing litigation or regulatory investigations which can lead to legal battles and fines.

Identifying fraud

Indicators of fraud exist, and businesses must be able to identify them in order to protect their integrity and reputation. Recognising these warnings plays a crucial role in preventing civil fraud. They include:

  1. Discrepancies: Discrepancies that remain unexplained in financial records, transactional data or inventory levels.
  2. Suspicious Behaviour: behaviour such as unusual secrecy, excessive reluctance to provide information or change of behaviour from employees.
  3. Changes in Patterns: Unexpected changes in behaviours or pattern of transactions can be an indicator.

How to prevent fraud

There are measures companies can adopt to prevent the risk of civil fraud. These measures are multifactorial and require awareness on different levels:

  1. A Culture of Integrity: by being transparent, upfront and accountable throughout the whole company, including strong ethics and good compliance.
  2. Internal Controls: safeguarding measures can prevent civil fraud by having oversight mechanisms, supervision or auditing. For example, understand how money leaves your business, including methods of payment and who has authority to make those payments.
  3. Due Diligence: conducting due diligence within partners or suppliers minimises the risk of civil fraud by ensuring integrity. Do not be coerced into a trade deal if you are not 100% sure who you are dealing with.
  4. Providing Training and Awareness Programmes: Prevention can also be achieved by educating shareholders with awareness and ethical conduct within employees or clients through training.

Consequences and remedies

If businesses suspect fraud, they must act quickly and inexorably by investigating, mitigating their losses and putting corrective measures in place. In addition, businesses should reassess and strengthen their preventive measures. Actions can include working hand in hand with regulatory bodies.

In order to pursue the wrongdoer for business fraud through the civil courts for the repayment of misappropriated funds, there must be evidence of wrongdoing, for example, misfeasance, misrepresentation, deceit or breach of contract.

Conclusion

Civil fraud poses a significant threat to the integrity of commercial and financial transactions. These risks are substantial enough to necessitate safeguarding measures. By understanding the nature of civil fraud and implementing high standards,, businesses can mitigate these risks and maintain trust with their shareholders and customers.

How we can help

Civil fraud litigation is a very specialist area of law and often highly complex. Having legal representation that is of the highest quality in this field is imperative so that a robust strategy can be formulated which will seek to minimise your risk. If you would like to discuss a potential civil fraud matter or would like to find out about our services more generally, please contact Adam Haffenden on 0203 440 8139 or email adam.haffenden@tvedwards.com

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Civil Fraud Solicitors Commercial Litigation for Complex Cases
TV EDWARDS SOLICITORS LLP

The exception to making full disclosure: The ‘Millionaire’s Defence’

In family proceedings concerning finances, a central rule is that both parties must usually make full disclosure of their means to the court and to the other party.

Our Services Contact Us
← Back to News & Blogs
12 April 2024
Paul Read
Partner - Head of Family Law
Blog Divorce and Family Finance Family

In family proceedings concerning finances, whether in connection with divorce or otherwise, a central rule is that both parties must usually make full disclosure of their means to the court and to the other party.
The rationale behind the rule is of course obvious: how can the court or the parties determine what is a reasonable settlement without full information regarding the means of both parties?
But parties often do not wish to disclose the private details of their financial affairs, particularly as details disclosed in financial remedy proceedings may become public knowledge.
And there is one situation where a party may avoid having to make full disclosure of their means, although it only occurs in exceptional cases.
The situation occurred in a recent case that took place in the Family Court in London.

Hugely privileged lifestyle

The case concerned a mother’s application under Schedule 1 of the Children Act for financial provision for her two children, from their father. (The parties had married in a Nikah ceremony in London, but that does not constitute a valid marriage under English law, hence the Schedule 1 application, rather than a financial remedies application on divorce.)
A brief look at the background to the case hints at its exceptional nature.
When the parties met the mother was a professional equestrian. The father, who is a member of a Middle Eastern royal family, also has a particular interest in horses, and co-owns with his brothers a holding company with business interests in that area.
The parties met in in late 2017 at an American equestrian event, and swiftly started a relationship. They had two children, now aged 4 and 2.
During the course of the relationship the parties enjoyed a lifestyle that Mr Justice Peel, hearing the case, described as “hugely privileged”, involving private jets, first class commercial flights, staffing, luxurious holidays, high end cars and the like.
The parties separated in 2021 and the mother issued her application the following year seeking, amongst other things, a $5.5 million housing fund in the USA (where the mother and children had relocated), $150,000 for two cars (one for herself and one for the nanny, to be replaced every 4 years), £602,400 for horses for the children as they grow older, and $780,000 per annum total child maintenance.

Resources to meet any reasonable orders

The father did not make full disclosure of his means, but in correspondence he did produce a schedule asserting net assets of about £70 million, and an average net income of about £4.3 million per annum. At a hearing he accepted that he had the liquidity and resources to meet any reasonable orders that may be made by the court for the benefit of the children, up to the level of the mother’s claims.
This, said Mr Justice Peel, is a standard version of the so-called “millionaire’s defence”, which is deployed to avoid, or reduce, the need for financial disclosure which is otherwise almost universally required in financial remedy proceedings. To put the “defence” in simple terms, the party raising it is essentially saying that: “I do not need to make full disclosure, as I can afford to pay anything that the court may reasonably require me to pay”.
The millionaire’s defence does not, however, necessarily mean that no disclosure is required. As Mr Justice Peel explained, provision of some disclosure is usually necessary, as it enables the claimant party, and the court, to have some understanding of the scale of wealth, and how it is structured. Whilst he accepted that the defence applied here, he therefore ordered the father to file a financial statement, but without the usual obligation to file documentation in support.
The financial statement actually indicated that the father had assets of about £111 million net, significantly more than the figure of £70 million previously mentioned.
In the event Mr Justice Peel made an award that was not too far short of what the mother was seeking, including a $5 million housing fund, car provision at $100,000 every 5 years for the mother and $50,000 every 5 years for the nanny, and child maintenance of $250,000 per child per annum. (The mother’s claims for horses for the children were adjourned until the children are older.)

Conclusion

The millionaire’s defence is allowed by the court not just to spare that party from having to make full disclosure, but also to avoid unnecessary expense. It is, however, clearly only open to those possessed of great wealth, as few people are in a financial position to say that they can meet any reasonable orders that may be made by the court (bearing in mind that the amount of the award will usually reflect the standard of living that had been enjoyed by the family).


In fact, the term “millionaire’s defence” is perhaps something of a misnomer, as the possession of a ‘mere’ million pounds is unlikely to be sufficient to persuade the court to make an exception to its rules.

Contact us on 020 3440 8000 or email family@tvedwards.com should you require advice on your family’s financial issues if you are separating, divorcing or dissolving a civil partnership.

Disclaimer: The information on the TV Edwards website is for general information only and reflects the position at the date of publication.

Related Services:
Family Finance Solicitors
Contact Us
020 3440 8000 enquiries@tvedwards.com Our Offices Contact Us