A New Face at Family Law Consultancy

FLC welcomes new member of staff, Laura Wilson, to the team this month. Laura has been with the firm for a while in a temporary position, but we are pleased to say that she is now joining us as a permanent member of staff.

Laura’s role as a legal secretary and office assistant is an invaluable one in helping us take good care of our clients.  We hope she will continue to enjoy being part of the busy FLC team! 

CSA to charge single parents

The government is proposing to charge single parents who seek help from the CSA (Child Support Agency) to obtain maintenance for their children from the other parent.

On 1 February, the House of Commons voted to overturn a House of Lords’ amendment to the Welfare Reform Bill which was intended to prevent single parents being charged for child maintenance services, where they have no alternative but to use the statutory system to get financial support from the other parent. This is despite the fact that the amendment was overwhelmingly supported by the House of Lords, with 270 votes in favour of the amendment and just 128 against, inflicting the biggest defeat on the government since the election. 

During the debate, DWP Minister, Maria Miller, announced that the government would set the upfront application fee, which is payable by parents with care who seek the CSA’s help to obtain child maintenance, at £20 for all applicants. Originally, the government was proposing that the fee be £100, or £50 for those on benefits. This reduction is small comfort to those parents left with no option but to use the CSA, however, as they will still lose up to 12% of all payments collected by the CSA, and which are of course supposed to be for the benefit of their children

Kim Fellowes, who chairs the Child Support Committee of the family lawyers’ group, Resolution, said,

“There will be no incentive for a difficult non-resident parent to make a fair agreement – or any agreement at all – if they know their former partner cannot afford the CSA fees. For many single parents, the costs involved represent a significant sum of money, which means, coupled with the 7-12% collection fee, there is a real risk that they will lose what they are entitled to.

The CSA was designed to ensure non-resident parents were made to face up to their responsibilities; at the moment, there is a real chance that the government, despite its rhetoric, will let them off the hook.”

But Iain Duncan Smith, the work and pensions secretary, told the Andrew Marr show that the current system led to parents being "almost forced to be at each other's throats," and argued that the charges would lead to disputes over child maintenance being settled out of courts more often.

"If you have a relatively small charge, what happens is that people will think about it," said Duncan Smith, insisting that the proposals would be, "better for the children."

Whilst most other amendments to the Bill were passed by relatively small margins in the Lords, the CSA amendment to do away with the charges was overwhelmingly passed. Immediately after those votes, however, senior ministers in the Commons used a procedural committee to declare the Lords’ amendments invalid, relying on the somewhat archaic convention of “financial privilege”, which states that the Lords may not rule on financial matters.

Parliamentary convention has long stated that the Lords do not deliberate on ‘money’ Bills, such as the Budget, but such legislation is never introduced to the Lords in the first place.

What the government is doing here is declaring that the Welfare Reform Bill has financial implications which render the Lords exempt at this critical stage in proceedings. The most obvious question is why ministers have taken this view now, rather than months ago, at the first stages of the Bill.

It is inexplicable that the government should introduce a Bill to Parliament with the intention of it being considered by both Houses, only for it to declare the Bill beyond the auspices of the Lords at this relatively late stage.

Whether the Lords behind the key amendments to the Bill will be able to mount a cohesive defence against this is presently unclear, but it seems that the whole process could end up in a judicial review.

It is an issue of some magnitude; if the break with precedent is deemed to be legitimate, it could have implications for other major government bills going through the Lords, including the legal aid and NHS reform Bills, both of which are highly controversial.

We therefore eagerly await the Lords’ response to the government's declaration of financial privilege. 

Family Law Consultancy expands fixed fee and online services

For several years now, FLC has offered clients the option of paying a fixed fee for their divorce. Having found that this works well for our clients, we have expanded our fixed fee case options across all of our services, and we now hope to offer the vast majority of our clients the option of a fixed fee, whatever the nature of their case.

We believe that we are currently one of only a very few firms in the country offering the option of fixed fees across the full range of services. FLC Director, Robin Wide, says,

“It is about responding to client needs and that means being able to offer more certainty about costs. The majority of our clients, understandably, want to know how much their case will cost, so that they can manage their finances. We believe the option of a fixed fee provides reassurance at a time of great emotional upheaval.

We are also now offering fixed fee online services. Presently, the service covers online divorce, but we are looking to develop it to cover other types of case as well.”

To help clients budget, FLC also allows payment for most fixed fee cases to be made in spread installments and by standing order.

For further details, please click fixed feeoptions or online services.

FLC proud sponsors of St Andrews FC

Family Law Consultancy Ltd are proud to sponsor St Andrews FC. Director Robin Wide is also a member of the executive committtee at the club in the role of Club Welfare officer.

Prenups almost legally binding !

The long awaited judgment in the Radmacher appeal has finally been delivered and provides much food for thought and material for further debate.

The bottom line is that the appeal against the decision of the Court of Appeal has been dismissed by a majority of the members of the Supreme Court (8 out of 9). 

The essential (and unsuccessful) basis of the appeal had been an assertion that the Court of Appeal had, in the particular circumstances, attached weight (or too much weight) to the existence of a pre-nuptial agreement between the parties.

The essential point of principle now established of the judgment of seven members of the majority (to which Lord Mance added a separate judgment), is namely:

The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

That principle sounds very much like a rebuttable presumption that nuptial agreements will be binding, and goes further than the previous approach which was to the effect that in all of the circumstances of a particular case the existence of a nuptial agreement may have a magnetic force and prove determinative. 

The Supreme Court has certainly now said that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but could the otherwise unmet financial needs of one of the divorcing parties ever mean that "it would not be fair to hold the parties to their agreement"? 

It is also of note that the principle applies to all nuptial agreements, whether pre-nuptial, or post-nuptial, and the majority of the members of the court have rejected the distinctions drawn by the Privy Council in MacLeod in that regard.

Some limited and fairly bland guidance is given as to "the difficult question of the circumstances in which it will not be fair to hold the parties to their agreement", and it is said that "This will necessarily depend on the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result".  However, it might be thought that the principle now laid down by their Lordships has already gone some way towards fettering the flexibility of the court. 

It may be said inhibitions on flexibility are justified by the desirable aim of providing predictability, but even now there is no absolute predictability, because of the apparent flexibility of the "get out" considerations.  Indeed, when discussing the problem of unforeseen and unforeseeable  changes the majority decision indicates that such factors may in a given case make it unfair to hold the parties to their agreement, and that the longer the marriage has lasted, the more likely it is that this will be the case. 

The justification given for the importance to be attached to nuptial agreements is that "there should be respect for personal autonomy", but that may be thought to be less than entirely convincing in the context of a non-commercial environment where it will be impossible to predict the future and where there may be real inequality of bargaining power (emotional and otherwise).  One can foresee arguments in future cases on the basis that the agreement was not "freely entered into" and/or that one party did not have a "full appreciation" of the implications of the agreement.  All of this seems to be acknowledged in the majority decision.

Of course it may be possible to counter such arguments to some extent by measures such as full advance disclosure of financial resources and independent legal advice (said to be "obviously desirable"), but it seems that it will not necessarily be unfair to hold parties to an agreement in the absence of such features – all will depend on the particular circumstances, such as whether non-disclosure was really "material", or whether the other party was "indifferent" to the detailed particulars, and whether each party was in fact fully aware of all the implications of the agreement.

All of the matters discussed in the judgment as factors that may support or undermine any given nuptial agreement make complete sense, but given the multitude of such features and the necessarily imprecise guidance given in relation to them, why, it might be asked, are any presumptions necessary? 

Ultimately, a nuptial agreement will have importance in any financial dispute on divorce, but it cannot be guaranteed to provide the ultimate answer, or avoid litigation in any given case.

FLC partners to take part in a sponsored run for the British Heart Foundation

The staff of Family Law Consultancy are more usually seen hot footing it down to the local Court, but on Sunday 12 September 2010, they will be hot footing it around Wimpole Hall Estate in Cambridge, to help raise money for the British Heart Foundation.

"Apart from going to Court, we spend most of our time sitting at our desks", said FLC partner Stephanie Walmsley "so doing 9.5 miles will be a bit of a challenge.”

Fortunately, the Family Law Consultancy doggy mascots will be on hand to pull the team round if they start flagging. “Ralph and Molly have known each other since they were puppies”, said Stephanie, “the pair of them have boundless energy! And we’re also lucky to be supported by a few sporty, non family lawyer friends, who are going to come along and help sustain the FLC team.”  

Family Law Consultancy has supported the British Heart Foundation since the original founder of the firm, Brooks Simpson, died suddenly from a heart condition at only 36 years of age. “Brooks worked so hard to establish the firm, and his loss at such a young age was incredibly tragic,” said Stephanie, “The British Heart Foundation funds vital, life saving research and also provides support to people affected by heart problems.”

So far, clients, family and friends and business colleagues have been very generous and the team hope that people will continue to sponsor them. Even a few pounds will make a huge difference and help British Heart Foundation continue their invaluable work.

You can sponsor the Family Law Consultancy team by visiting their online fundraising page on www.justgiving.com/stephanie-walmsley. You can pay by credit or debit card, and the money will go directly to The British Heart Foundation. Where supporters are UK taxpayers, the charity will automatically receive 28% extra in Gift Aid, which makes Justgiving the most efficient way of sponsoring Family Law Consultancy.