“The Italian Job” …..re Spousal Maintenance

SHOULD THE UK COURTS FOLLOW THE ITALIAN SUPREME COURT ON SPOUSAL MAINTENANCE?  Vijaya Sumputh, Solicitor, Family Law specialist at Curwens asks whether this case will have any effect.

According to “The Telegraph”, Vittorio Grilli, the former Italian Economy and Finance Minister (2012-2013) and his former wife Lisa Lowenstein, an American businesswoman, divorced acrimoniously in 2013.  Vittorio was ordered to pay his former wife the monthly sum of €2M to maintain her lifestyle but that was not the end of legal proceedings as Lisa then returned to Court to make Vittorio pay her debts.

The Court of Appeal in Milan rejected her claim for maintenance payments for life on the grounds that her Income Tax Returns were incomplete and Vittorio’s income had since reduced, so Lisa took the matter to the Supreme Court in 2014.

In May 2017 the Supreme Court of Cassation in Rome ruled that divorcees do not have the right to automatic indefinite maintenance payments.   The Judges stated that divorce should be modernized and not be seen as “set up for life”.  They concluded that divorcees who have independent means or the capacity to work, should not expect to receive maintenance payments indefinitely. They stated that divorced parties are not all entitled to maintain the same “tenor of life” as when married and, if possible, they need to learn to be self sufficient.

The Judges further recommended that keeping up payments indefinitely can be “an obstacle to starting a new family”  and have called for the divorce law to reflect modern relationships.

Now that the Italian Family Law system has rejected the idea that divorced spouses are guaranteed their previous standard of living, it is likely that many Italian divorcees will want to challenge their divorce settlements, however, the Italian Family Court will have to be incredibly careful not to discriminate against the financially weaker party and unfairly disadvantage those without the means to gain financial independence.  While they may no longer guarantee life long maintenance payments, they must guarantee provision for those who lose their earning capacity because of their commitment to marriage.

Given Italy’s trend, it will be interesting to see if other justice systems will also be tempted to reform the reasoning behind divorce settlements.

In contrast, only a few months ago, in a UK divorce case, Mills v. Mills, the former husband asked to end indefinite maintenance payments under English Law.  The parties were married for 13 years. The wife said that in the early years of the marriage, she ran her own beauty business and financially supported the family while the husband finished his studies, after which they both then worked together to set up his business as a surveyor. The parties have one son, who is now at university.

Towards the end of the marriage, the wife suffered serious health problems and had to reduce her working hours. The parties separated in 2001 and divorced in 2002. They reached an agreement that the family home would be sold, the wife would receive £230,000.00 from the sale to buy a new home for herself and their son, and husband would keep his business assets. Additionally, the husband agreed to pay the wife spousal maintenance of £1,100 per month. In 2014 the husband applied to court to end those payments and the wife cross-applied to increase them. The judge disagreed with both of them so they both appealed.

The Court of Appeal found that the original judge had erred in not increasing the maintenance to cover the wife’s shortfall, despite knowing that she could not meet her basic needs and the husband could afford it. The appeal court increased the maintenance to £1,440 per month indefinitely.

This shows that in the UK, maintenance payments continue to be set for a limited period of time or until one party dies, marries or enters into a civil partnership but the Court calculates maintenance payments based on the financially weaker party’s income needs and earning capacity, considering a range of factors such as their age, the length and living standard of their marriage, their health and caring commitments. While each case is specific to its own facts, the Court’s objective is always to enable a party to make a transition to independence where possible. On the facts of the Mills case, the wife was not able to make that transition

At Curwens we are regularly faced with the issue of claims for maintenance, acting for either the person making or challenging the claim.   We provide expert advice on what is a reasonable amount to expect to be awarded or agreed.  We will also guide you through the procedure and explain the financial risks where agreements cannot be reached.  It is therefore essential that you obtain expert legal advice on your position.

Vijaya (Asha) Sumputh

vijaya.sumputh@curwens.co.uk

Family Law Solicitor – Curwens LLP.

Vijaya offers both fixed fees and flexible pricing for all family law services. For an initial consultation, call Vijaya direct on 0208 884 7221 and she will be happy to help you with all your family queries.

www.curwens.co.uk                                                                                      CURWENS LLP

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PRE-NUP – WHAT’S THAT ? DO I NEED ONE ?

With the romance of Valentine’s Day now behind us, let’s talk again about the practical aspects of our relationships.

With the unavoidable increase in divorce and separation rates, it means that more of us who are getting married or moving in together are not “first timers“. Not only that, either one or both parties may have children from a previous marriage. This can mean ongoing financial ties to an ex-partner and possibly having a home or assets to bring into the new relationship.

So it’s  more important than ever for couples to take a small step back from the romance of their new relationship or wedding plans and think about the practicalities. If they are about to start living together, or planning to tie the knot, they should take legal advice on having a Cohabitation Agreement or Pre-Nuptial Agreement.

These don’t have to be long or complicated documents. The aim is to record what can be agreed amicably straight away, to cover what would happen if you ever did split up:-

  • Do you get to keep the property you brought into the relationship ?
  • Do you have to financially support one another after separation ?
  • How do you split anything held in joint names ?
  • Do you have to share any debts ?

The idea of considering a pre-nup early on is to avoid the time, anxiety and cost of a complex legal battle further down the line. Of course no-one has a crystal ball and your thoughts on how assets should be divided between you may change if you are married for many years, or if you have children together but in that case, no problem – you simply agree to review the terms of the Agreement on certain “trigger” events.

If you would like more information on having a Cohabitation or Pre-Nuptial Agreement drawn up please contact

Enfield:  

Vijaya Sumputh

0208 363 4444      vijaya.sumputh@curwens.co.uk

Hoddesdon/Royston:

Amanda Thurston 

01992 463727       amanda.thurston@curwens.co.uk

Curwens LLP is your local firm of solicitors offering you expert legal advice when you need it most.

Offices in Royston, Hoddesdon and Enfield.

www.curwens.co.uk

 

 

D-I-V-O-R-C-E – who gets what?

This month, I’m grateful to my colleague, Vijaya Sumputh, a specialist Family Law Solicitor at Curwens for her timely advice on the way some family assets are dealt with in divorce :

“According to a recent article in the Guardian, divorce enquiries are expected to rise more than 300% at the beginning of the year.  As Family Law solicitors, in this situation, we’re often asked the big question :  Who gets what?

The process of dividing the marital assets on divorce or family breakdown can be  emotional and complicated. What our clients want is a clear idea of what they may end up with at the end of this process, for example:

  • Who gets the matrimonial home?
  • Who gets the engagement ring?
  • Who gets the family pet?

Sadly, it’s not always possible to give a definitive answer to these questions, particularly in the early stages.

The Courts approach each case on its own individual set of facts – what might be right for one family, may not necessarily be right in all cases. The law in England and Wales is based on a discretionary regime which means there is a vast range of settlement options available in different circumstances.

There is no hard-and-fast rule, which is why it is important to take legal advice so that you have a better idea of the range of likely outcomes in your case.

Who gets the family home?

Often the family home is the biggest matrimonial asset and potentially the most emotionally significant one. Whether the house will end up being sold (and the net proceeds of sale divided) or transferred to one of the spouses, very much depends on the family’s needs.

In some cases, the family home may be kept by one spouse if that spouse is the primary carer for the children. Unless there is sufficient net equity in the property to re-house both spouses in a mortgage-free property, priority will usually be given to the spouse who needs to have the children living with him or her.

In some cases, the family home is kept by one party until a defined point in the future (such as when the children are all over 18) when the former family home can be placed on the market for sale at a price to be agreed by the parties (or if they can’t agree, as determined by a Court).

If, however, there are other assets that a Court can take into account, then one spouse may be able to retain the house permanently and pay other funds to the other person to “buy out” their interest.

When making any financial order, the court will look at a number of factors such as the length of the marriage, the age of the parties, whether they are working and what their earning capacity is, whether there are children, what each party’s needs are and what assets are available to meet those needs. It’s complicated, so do take legal advice.

Who gets the engagement ring?

The answer to this question can vary depending on whether the engagement ring was a family heirloom or perhaps inherited by one party. More often than not, engagement rings are retained by the wife to be passed down to one of the children.

As a general rule, the courts prefer chattels to be divided by agreement but if no agreement can be reached, the court can simply order all chattels to be sold and the proceeds divided.

Who gets the pet?

The family pet is mostly regarded as a member of the family but as the Courts will usually treat family pets much in the same way as any other chattel, we strongly encourage the parties to agree who will have responsibility for continuing to care for (and pay for) their family pet! ”

Vijaya Sumputh  –  0208 363 4444  –  Vijaya.sumputh@curwens.co.uk

www.curwens.co.uk

“The Archers – what next for Helen and her children? The Family Lawyer’s view “

Those of us who are Archers fans have been glued to our radio sets recently, following the latest stressful storyline – stressful for the characters and fans alike – involving the trial of Helen Titchener (aka Archer).  Although it is fiction – and exciting fiction at that – there are lots of issues that have been thrown up by this storyline such as abuse, controlling behaviour and custody disputes which all too often happen in real life.  Although Helen’s barrister, Anna Tregorran, eventually triumphed spectacularly in both Courts (Criminal and Family) we have to remember that it was scripted and a lot of dramatic licence was taken, so I was delighted to spot an excellent article written by four real life barristers from 42 Bedford Row who specialise in Family Law.

http://www.42br.com/wp-content/uploads/2016/09/Archer-v-Titchener-FINAL18-09-16-1.pdf

Thank you Jennifer Kotilaine, Pauline Troy, Emma Romer and Eilidh Gardner for a very helpful explanation of what could happen to a real life “Helen”.  They give their opinions about might happen to the children in a disputed case like this and what the future might hold for Helen.  http://www.42br.com

Meanwhile, to lift the spirits – something good has come out of all this. An Archers fan, Paul Trueman, was inspired to help all the real life “Helens” out there and so set up  The Helen Titchener (nee Archer) Rescue Fund  – We’re raising money for Refuge because for every fictional Helen, there are real ones. 

Since February 2016, Paul’s fund has raised £168,975. His JustGiving page is still open for donations

https://www.justgiving.com/fundraising/helentitchener?utm_source=Twitter&utm_medium=fundraisingpage&utm_content=helentitchener&utm_campaign=pfp-tweet

Finally, in traditional voiceover style, if you or anyone you know have been affected by Helen’s storyline, experts at Refuge (www.refuge.org.uk) are ready to help.

Family Solicitors

 

 

“I’ll see you in Court!”

Recovering a trade debt 

There is a lot to consider before starting court proceedings in England & Wales:

  • The court has to deal with matters “justly and at proportionate cost.”
  • Do a cost/benefit analysis before starting proceedings, including the cost of enforcement.
  • Check the other party is good for the money – there’s no point incurring the cost of litigation if you can’t enforce the judgment.
  • Don’t start proceedings if you don’t intend to see them through. Unless it’s a small claim (less than £10,ooo) you’ll almost certainly be liable for the other party’s costs if you discontinue the claim.
  • Be careful about always threatening to sue if you don’t mean it – don’t just “cry wolf” – the word will get round to your contacts and damage your reputation.
  • Recovery of your legal costs depends on:
    • who wins or loses;
    • your conduct as well as compliance with court rules and orders (for example, a failure to comply with a pre-action protocol can have cost consequences even for the party that wins);
    • when the matter ends (whether before or after proceedings have been started);
    • the financial value of the claim and the “track” the claim is allocated;
    • how the claim is concluded (whether by agreement or at trial).

Reaching a settlement

Litigation can be disproportionately expensive to the sums being argued about, the outcome is uncertain, the court is only able to offer a limited range of remedies and litigation often destroys any prospect of the parties resuming a commercial relationship so consider alternatives -for example:

Negotiation

  • It might be possible to recover the debt or agree an alternative future course of action by opening a negotiation with the debtor.
  • This can be done verbally or in writing (which includes e-mails).
  • Parties usually negotiate on a without prejudice basis.
  • The without prejudice rule generally prevents statements made in a genuine attempt to settle an existing dispute from being used as evidence of admissions against the party which made them.
  • This rule means that, if the negotiation or mediation fails and the business then issues court proceedings, any statements that the parties made in a genuine attempt to settle the dispute (whether in writing or orally) will not be put before the court in the proceedings.

Mediation

  • Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third party helps parties to work towards a negotiated settlement of their dispute.
  • The parties retain control of the decision whether or not to settle and on what terms. 

Doing nothing

You can always simply write off the sum but before taking this step, consider the:

  • Size of the debt.
  • Likely cost of recovering the debt.
  • Importance of the current relationship between the parties.
  • Likelihood of maintaining an on-going commercial relationship between the parties.

norma.morris@curwens.co.uk

http://www.curwens.co.uk

http://www.justice.gov.uk

 

 

 

“What’s in a name…..?”

Quite a lot, really, in these days of badges and qualifications.  When you have a legal issue and you don’t already have your own family solicitor you’ve used before, how do you know which firm is “up to scratch” – how do you choose the “right” law firm for you.

For law firms, start by talking to your contacts and get a personal referral. Yes, you can just do an internet search and start ringing round, but a personal contact is always the best “soft” way to go about this.

If you do have to rely on the internet, there are certain things you can look for that will give you reassurance, such as a recognised accreditation.  For firms of solicitors, the important badge to look for is Lexcel which is awarded by the Law Society.

Lexcel is the Law Society’s legal practice quality mark for excellence in legal practice management and excellence in client care. It’s not awarded lightly and, once it is awarded (following an independent audit) firms have to have an annual audit for it to be continued.

Other specific accreditations are available – here are a couple of examples :

Conveyancing Quality Scheme logoFamily Law Accreditation Scheme logohttp://www.lawsociety.org.uk

Try calling 2 or 3 firms and see how your call is dealt with.  You should be able to speak to someone with knowledge of your legal issue at least for 5-10 minutes (free!) so that they can assess whether or not they can help you and, if they can, how much it will cost – either as a set amount, such as for a property sale, or by hourly rate which is used in a family case.

It’s very much how you feel about your lawyer – you don’t have to like him or her but it will help, particularly in areas such as family law – but also, you have to feel confident and comfortable.  Unless you have an emergency situation, such as an injunction, take time to speak to more than one law firm and take time do consider the “best fit” for you.

If you need any help with this, feel free to give me a ring – Norma Morris – 0208 363 4444 – norma.morris@Curwens.co.ukhttp://www.curwens.co.uk