Marriage Broken Down. Two Years Apart. But Refused a Divorce. Really?

Marriage Broken Down. Two Years Apart. But Refused a Divorce.

This week’s newspapers and specialist legal journals are full of the defended Divorce case of Owens v Owens.

Mrs Owens want a Divorce and Mr Owens won’t agree. After two years of living apart, she has failed to get the Divorce. Link here to the Court case, the actual decision.

The case is unusual because whilst Mrs Owens wants a Divorce – and therefore – and because of her actions in moving out of the family home over two years ago, and because she is adamant that she will not live with her husband ever again, the Courts have agreed with her that “the marriage has broken down irretrievably”.

It may come as a surprise to you if you are not a lawyer, that those facts alone are not sufficient in English Law, to entitle Mrs Owens to her divorce.

Because of the present Divorce Law, dating from 1969, she ALSO has to prove at least one out of the five following alternatives –
1. That Mr Owens has committed adultery and she finds it intolerable to continue to live with him. No, He hasn’t’ [NO – she has, by the way, but he hasn’t].
2. That Mr Owens has behaved towards her in such a way that she cannot reasonably be expected to live with him
3. That Mr Owens has deserted her for more than the past two years. [NO – He Hasn’t]
4. That having lived separate for over two years, Mr Owens consents to the Divorce [NO – Mr Owens does not give his consent]
5. That the parties have lived apart for more than five years [NO – They haven’t]

So four out of five options are unavailable to her, leaving the second one as her only chance. Which is, to repeat, “that Mr Owens has behaved towards her in such a way such that she cannot reasonably be expected to live with him”.

Problem is, the worst she can say about him is – Mr Owens is a bit grumpy, perhaps a bit pedantic and set in his ways, a bit autocratic. A bit prone to complain and nag. [Remind you of your Husband at all?]

But they married in 1978 and there is no suggestion that Mr Owens has suddenly changed from Prince Charming in 1978 into a combination of Victor Meldrew and Jack Manningham in 2017.

Basically he seems to be the same person now as he was then. Bit of a difficult chap. Like so many others of us.

And significantly perhaps, she began to see a lot more of him after his retirement, than during the first thirty years or more of the marriage, when he would spend long days at his work, attending to the business of earning money.

As the trial judge noted, each example cited in her divorce petition seems to amount in itself to very little that you would not find in any marriage.

Of course if you love your annoying spouse, that’s one thing. If you stopped loving him years ago, it’s quite another, when he sends you out into the garden to put out the recycling cardboard “properly” or has a fit of the shouty strops in an airport concourse.

The papers are all over this – Boo Hoo, basically. A couple of Links here and here

The newspapers are decrying the refusal of the Judges to grant the divorce, as evidence of the “stick in the mud” nature of Judges generally, and their refusal to “move with the times”.

But contrary to this and in spite of the newspapers which seem to think that Judges can decide every case as they might think the public would prefer, in fact the Judges’ job is to implement the actual law.

Which is as stated above.

And if, as they found, Mr Owens has not as alleged begun to behave in a manner such that Mrs Owens cannot be reasonably expected to live with him but has in fact merely continued to be the same rather difficult man he was in 1978 when she married him, then alternative No. 2 does not exist either.

So end result of the recent Appeal hearing, – the marriage has broken down, but it cannot be ended for a further three years – when option number five will be available.

What do you think?

On the one hand, Mrs Owens wants a “No fault Divorce” without waiting five years from separation.

On the other hand, taken to its extreme, a Law of “No – fault Divorce any time you like” will allow a spouse to flounce off to the Divorce Courts any time they choose because “I’ve been looked at funny and it’s all over between us”.

But no-fault no-waiting Divorce would seem to be a logical progression in the way in which Divorce law has evolved in England over the past couple of hundred years. And each change in Divorce law, has been made in order to accommodate changes in Society and public opinion.

Public Opinion now might well be that one party to a marriage, if s/he is unhappy, should have the right to end it. Unilaterally, to come into the kitchen and say “By the way, We are divorcing today, so that’s that, sunshine”.

A hundred or so years ago, happiness was probably considered a most unusual bonus in the rare instances of it in marriages, and the lack of it hardly worth comment. But that was then and the past is another Country.

So what do you think?

And what do you think “Marriage” is anyway? What, these days, is it for?

I mean, if you could end it anytime, easy, just like that, then how would it differ from just living together? Should it be any different? Why have gay couples fought so long and hard to be allowed to marry?

You don’t expect answers from me though, do you! It’s complicated, like this song

As always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com.

Advertisements

What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

What’s The Point Of Making A Will? Or Would The Court Just Ignore It?

In July 2015 I wrote this Blog – Courts Ignore Your Will. – Link here

In brief, a lady had disowned her seventeen year old Daughter, because she married without her approval. Apart from a couple of failed attempts to reconcile, they had no contact again before Mother’s death when Daughter was aged 54.

During all that time Mother made no gifts to her Daughter of any kind, not even ten bob in a birthday card. Not even a birthday card come to that.

The Daughter and her husband have five children. They all live together with on very low income supplemented by state benefits. That is to say, by money paid by you and me, from our tax, which comes from our earnings, which comes from our hard work. At any rate, none of their support came from her Mother while Mother was alive, although she could have afforded it.

Now whether the Mothers’ behaviour was reasonable is open to discussion. Most would say it was not reasonable. What has that got to do with it? For so long as Mother was alive, there was no pressure upon her to give any financial support to her Daughter.

And if she didn’t want to give the time of day to her Daughter, there is no law to say otherwise.

It might be that some people would say that adults with substantial assets should be forced to assist children and grandchildren struggling on low income. But in England, [at present] that is not the law. Whilst Mother was alive there was no Court action which Daughter could have successfully brought against her to win a share of her money.

And yet after the death, and reading Mother’s Will which left all of Mother’s estate (£486,000) to charities, Daughter brought a claim for a share of the estate.

On one level it all seems a bit random. Mother is dead now so I want a share of the money. Yet when Mother was alive, there was no share. And if Mother had lived to be 120 and spent all her money on care home fees, there would be nothing to get a share of.

And the 1837 Wills Act enshrines the English principle that you can leave your money to whoever the hell you want to. Because, It’s your money, see, Sherlock?

By the way, this is pretty unusual around the World. In most countries, in fact you are not free to dispossess or ignore your family members in your Will. Even in Scotland just up the road, your children are entitled to share up to half your money after you die, even if you hated their guts.

Anyway, we are not in Scotland or Spain or anywhere foreign.

But there is a Law here which to an extent contradicts the Wills Act. The Inheritance (Provision for Family and Dependants) Act of 1975 says that as regards children [that is, issue, whether adult or minor], a child ignored by a Will can claim “reasonable financial maintenance”.

Ok, so we are faced with the word “reasonable”.

What in the world might that mean?

In this case, your view might be –

1 After thirty years of no contact, it is reasonable for nothing to be paid or
2 The Daughter is not starving, she has no claim upon any more money, but the estate should be ordered to pay enough to ensure that the State no longer has to pay benefits [out of our tax!] or
3 The Mother has an estate worth hundreds of thousands of pounds, the word reasonable should be interpreted in the light of the size of the Estate. So that a Daughter should receive more money from a multi-million pound estate. Which would put a strain on the word “Maintenance” but you might think that the provision of a higher standard of living is a reasonable interpretation in the context of a huge estate?

The fact is, the Law give no explanation of what its words “reasonable” or even “maintenance” actually mean.

This results in a situation where the trial Judge is on his own, and the decision will depend upon his human reaction to the facts of the particular case. So if he likes the Daughter, she wins? Not the best basis for the Law surely.

So, in the first instance, the Daughter was awarded £50,000.00. But when she appealed for more, to the Family Court, she got nothing at all. Link here

On the next appeal, the Court reinstated the decision of the first judge that there should be an award of something to the Daughter, and allowed an application that the actual amount could be reconsidered at a further hearing.

On her next Appeal after that, to the Court of Appeal, the amount of the award was increased to £163,000.00 link here . This was the point in 2015 at which I, like many lawyers, began to feel that making a Will is a waste of time if the Courts won’t take notice of my wishes.

It is reported that after this decision, with such a resounding success for the Daughter, there has been a rise in similar applications to dispute the terms of Wills. This is regrettable if you believe that the terms of a Will should actually be put into effect, not picked apart by the Courts for the next twenty years until the Lawyers have got all the brass.

In the final resolution, the Supreme Court Appeal Decision link here, has in essence said, stop all this messing about. Unless an original Judge has misunderstood the law, or applied it incorrectly, then his decisions must stand whatever other people and Judges would have decided if they have been in charge instead.

Much like football. Was it a goal? Well it was if the Referee said so, and if you don’t believe it, read the paper tomorrow. Don’t take it to the Court of Appeal.

So, the final upshot, we are back where we started, at an award capitalised at £50,000 for the Daughter in lieu of maintenance.

And it is 2017 today, and Mother died in 2004.

In that judgment this month, the Supreme Court Judge Lady Hale, also pointed out that it would have been helpful to everyone if the Law were more precise.

Use of words like “reasonable” and “factors to be taken into account” mean different things to different people. And once you have taken factors into account, the law gives no guidance as to what weight should be applied to each factor.

Lady Hale did not say, but did perhaps imply, that in this case, and given that England is a Country where property owners are understood to be able to dispose of their property on death however they jolly well please, it might have been easy to understand if the original Judge had dismissed Daughter’s claim entirely.

That is the outcome that most of us would probably think fair. Or does that depend upon whether
A. you own a lot of stuff, or
B. your Mother does?

At any rate, to answer my original question, this decision has gone a long way to reinstate the view that, yes it is worthwhile making a Will.

Many commentators are suggesting that if you intend to leave nothing to your children, and to leave large sums to charities which you have never seemed very interested in during your lifetime, perhaps you should write a letter of wishes and keep it with your Will. This could be a more detailed letter, written in non “Legal-Jargon”, in which you could make clear the strength of your feelings. Might help I suppose.

Families, eh? Here’s a Happy Song.

As always, whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com

Documents For India Need Notarisation? Louise Helps You Through The Maze

Documents For India Need Notarization? Louise Helps You Through The Maze.

A high percentage of my workload relates to documentation prepared for clients with Indian connections. Typically this will be paperwork relating to Powers of Attorney or to the Administration of the Indian Estates of deceased relatives.

If there were only one message I could give, it is that it ultimately costs more to get it wrong than to get it right. Taking shortcuts in respect of legal documentation for any foreign Country is a recipe for wasting money.

Typical mistakes include the following:
1. Drafting the Deeds yourself.
2. Failure to Witness as required
3. Failure to Notarise
4. Failure to legalise

There are more mistakes which can result in rejection of your documents in India, but these four above are far and away the most usual.

To expand on these –

1. Drafting the Deeds Yourself.

Christopher Atkinson has been a Notary for over Twenty Two years and we have a copy of every Indian Power of Attorney that he has ever notarized. There are many hundreds of them and each one is different in words or in format. If you have any experience of India, you will know that nothing is standardized there. Most Indian Lawyers consider that their documents are the only correct ones. The Moral – Get your lawyer in India to draft your paperwork. If you draft it yourself, or even if we draft it for you, most probably they will reject it. It can be emailed over to UK and then I can print it at my office for you.

2. Failure to Notarise.

There are unfortunately many Solicitors who appear to be willing to countersign as the “Notary” witness on Indian Deeds. This is ALWAYS WRONG. A Solicitor who is not also a Notary, is not accepted in India as an appropriate Certifier for your Deeds.

3. Failure to Legalise

This is a tricky area. India has signed the 1961 Convention of The Hague and your Notarized documents should be legalised with the Apostille stamp. But, to muddy the waters, often documents will be accepted without this, and on the other hand sometimes Indian lawyers incorrectly ask for an Indian High Commission Stamp. This article is too short to give full details of all the problems, but I can explain if you phone or email me. Also we have written other blogs on the subject, if you use the index on our website searching for “India” or “Apostille”.

4. Failure to Witness.

With the exception only of some Bank Deeds, all Indian Deeds executed in England and particularly Powers of Attorney require that your signature is witnessed by two adults in addition to the Notary.

And do not do what we have sometimes seen. A client with a Deed for India requiring two witnesses and the notary, brings us a document already signed by two friends, who do not appear with him at our office.

“What are those signatures?” We ask – reply, – “those are the witnesses! They can’t get time off work, so they signed it last night, ready for me to sign with you today!”

No really, we have seen this several times.

There are so many ways to get this wrong, only one way to get it right. Again, I do explain what is needed whenever a new client contacts me, and in my Office I can provide these extra Witnesses.

There are of course other ways to get things wrong. Some Deeds will be rejected unless you add photographs. Some Indian Lawyers demand [wrongly] that you use pre-stamped paper purchased in India. Some insist on green paper, some insist on strange sizes of paper…

The message I am hoping to give, is that time spent on preparation, in contacting your foreign lawyers and quizzing them in great detail as to EXACTLY what they want from you in England, will not be wasted. Otherwise the experience can turn into a frustrating and expensive [in both time and money] series of trial and error experiments.

As I say, I shall be only too happy to assist you through the maze. You can contact me or Mr Atkinson here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website www.atkinsonnotary.com

Government Ignores Your Input. Surprised? New Probate Fees.

Government Ignores Your Input. Surprised? New Probate Fees.

Here is a link to my Blog a year ago. Probate, How Much Would You Like To Pay?

In Brief, The Government invited you to respond to its consultation as to whether you think an increase in Probate fees from, at their highest, £430 today [for a couple dying together, or one shortly after the other] to a new sum of £40,000.00, was about right.

Yes, seriously, the new fees will be more than 9300% of the old ones. Nine thousand three hundred per cent. This is not a bad dream, though it’s not a good one either.

The new scales are
• £300 for estates worth more than £50,000 and up to £300,000
• £1,000 for estates worth more than £300,000 and up to £500,000
• £4,000 for estates worth more than £500,000 and up to £1 million
• £8,000 for estates worth more than £1m and up to £1.6 million
• £12,000 for estates worth more than £1.6m and up to £2 million
• £20,000 for estates worth more than £2 million

As I said , This is after consultation.
So, clearly, the general public thought that the increased fees are a jolly good thing.

Actually, not exactly, no.

The results are here LINK

What do we see? – Out of 829 responses as to whether the fee for probate should be proportionate to the estate value? Bearing in mind that the actual work done, and the cost of it, is not proportionate to the estate value, not surprisingly,:-

695 said – No, it makes no sense.

So in the context of a referendum, the vote for the status quo, the “remain” vote if you like, was over 75%.

Over 75 per cent.

With 71 responses abstaining, the vote for changing the status quo was:-

7%. Seven percent.

So there you are, the Government ask for consultation. Their proposals are overwhelmingly rejected – let me rephrase that – are supported by 7%, and will proceed.

Makes you proud, innit. Can’t Afford to Live, Can’t Afford to Die. Song Link here

As ever, do contact me or Christopher Atkinson here at AtkinsonNotary [0113 816 0116 or notary@atkinsonnotary.com or www.atkinsonnotary.com ] where we shall be more than happy to assist and help you through the maze whenever you have paperwork to be processed for foreign countries.

Airlines. Borders. Escalating Problems for Families Travelling Abroad.

Escalating Problems for Families Travelling Abroad.

The subject of foreign travel has been aired before in my Blogs but a recent call from a client reveals that the problems are getting even more difficult.

To recap, there have been cases reported of children being taken out of one country into another, without the consent of both parents. Typically this happens when a marriage or family relationship is ending, and one of the parents of children have a wide family circle in a foreign Country.

So in a case where, say the mother is African, – the first thing the father knows of the breakup of his marriage, may be when he wakes up one morning to find that the mother and his child/children are now living in Africa.

If the father does not consent to that, the taking of the child is viewed by the English Courts as kidnapping. Depending upon the foreign Country involved, it may or may not be viewed as a crime in the Courts of that country.

Alternatively the child might be taken abroad after a divorce by one parent, in defiance of a court Order. That also of course would be viewed in England as a criminal offence, a contempt of Court.

The next step, trying to retrieve the situation and obtain an order in the Courts of a foreign Country that a child must be returned to England, can typically take years and cost a fortune financially, to say nothing of the emotional cost suffered by all concerned. Not least of course, by the children who are the innocent parties.

Some Countries have created strict rules as to what papers are required to be produced before a person travelling alone with children is allowed to cross their borders. South Africa may be the best known such country, but many others have similar rules.

So let’s think this through. If you are a single person kidnapping your child in this way, you know that you are increasingly going to be asked for Notarised consents from the absent parent.

Light-bulb moment, – you need to travel with an accomplice. Because two adults with children will look like a family, yes? Nothing to suspect, waved through the border.

OK, so, staying one step ahead of that logic, the airlines and border guards are realising, we’ve got to deal with this now. They are understanding that there is no reason to drop their guards and relax just because there are two adults with a child.

And this week I have received news from the “Notary News Group” from my colleague Katie Beckett that this logical next step has been taken at least by one airline – bear in mind that airlines are involved in this, both by bad publicity if it turns out that they have carelessly allowed kidnappers to take children onto their flights and also because they are made to pay fines if travellers they have flown abroad are refused entry and have to be flown back to England.

She says – “I recently had a panicked call from a client at Heathrow airport waiting to board a flight to SA with her husband and two teenage children. All four had the same surname and both parents were the biological parents of the teenage boys (i.e. no complications whatsoever). All four had valid British passports but the airline was demanding a notarised copy of the birth certificates of the two teenagers to show that the people they were travelling with were, in fact, their parents.

They accepted a scanned copy of the notarised birth certificates but my point is this – the airlines into SA seem to have become ridiculously strict on this point so normal rules do not seem to apply.”

So, last week, on a flight to South Africa, two happily married parents with their two teenage children were denied boarding at Heathrow airport because they could not show notarised Birth certificates of the children. Required, by the airline, to show that the adults were indeed the parents.

This requirement exceeds the likely requirements of the South African border guards, but clearly the Airline was not willing to take any chances and has imposed its own, more stringent, requirement.

Should we blame it? Of course it is a tremendous inconvenience if a legitimate family miss a flight because they have not thought to take with them evidence that they are related.

But, compare that with the “inconvenience” in the worst case, where a child’s life is completely turned around and disrupted when he is used as a pawn in a war between his parents and taken from home, family, schooling to seek to make a new life in a foreign country. Inconvenience, for him, is not the word.

All this stuff doesn’t make things any easier for the honest traveller, just one more thing to put up with, but the only advice possible now for me to give, is, if your children are under 18, get their birth certificates Notarised before travel abroad in EVERY CASE.

And of course, if one only, or no parent, is travelling with them then you need to prepare the usual notarised consents as per my earlier blogs.

Or, take your holidays in the UK? Just a thought. Here’s a song

As ever, do contact me or Christopher Atkinson here at AtkinsonNotary [0113 816 0116 or notary@atkinsonnotary.com or http://www.atkinsonnotary.com ] where we shall be more than happy to assist and help you through the maze whenever you have paperwork to be processed for foreign countries.