However, areas of the press focused attention on the forthcoming Children and Families Bill, aimed at improving the current system in a number of areas such as speeding up adoption and care proceedings and giving more support to disabled children.

What grabbed the headlines, however, was the suggestion that non-resident parents (usually the father), will be given additional rights to see their children with a presumption of ‘shared parenting’.

This all sounds rather encouraging for groups who have long campaigned for additional rights for fathers to see their children.

But, in reality, what additional rights will be created (if any)?  How would courts be expected to interpret any legislation that provided presumption of shared parenting?  Indeed, how is ‘shared parenting’ to be defined?  Most importantly, is this something that children and parents want in every case, and is it always in a child’s best interests?

For many families, ‘shared care’ is neither in their interests, nor in the best interests of their children. There is a body of evidence from childcare experts that equal parenting may not be in a child’s best interests, and that children benefit from having one stable home and circle of friends.

Many parents have working lives which simply do not permit shared care. Sometimes parents live substantial distances apart, making shared care impossible. Sadly, there are cases where either the child simply does not want a shared care arrangement, or the welfare of the child cannot be safeguarded in the event of such an arrangement.

Ironically, over the past few years, there has been a slow but steady shift by the courts toward shared parenting.  In other words, courts are increasingly willing to accept that children have a home with each parent and should spend good quality time with each.  That doesn’t mean children should spend equal amounts of time with each parent. The Children Act 1989 requires the court, when considering questions of both residence and contact, to place the welfare of the child as its paramount consideration.  Of course, the court must consider all of the circumstances of the case in arriving at a decision, but, although each family’s circumstances differ, the court must exercise its own discretion in each individual case.  What is right for one family, (or one child), is not necessarily right for another.

What remains problematic is the use of labels to describe arrangements. Parents with ‘residence’ (regardless of whether or not a residence order is in place), often believe that they have greater rights over their children than the other parent, who has ‘contact’. Most worryingly, they often hold the view that they should decide when the other parent is allowed to see the child.

Removal of these labels will help overcome these misunderstandings. Nowadays, courts understand that ‘residence’ and ‘contact’ orders, whilst necessary in many cases, can often lead to the problems described above. As a result, courts are increasingly prepared to make ‘shared residence orders’, which prescribe how a child is to spend their time but specifically state that the child shall live with each parent. This removes the perception among parents that one has ‘won’, or gained power.

So in the event that the new Bill becomes law, what is likely to change?

It is difficult to see how there will be any seismic shift away from the manner in which the courts currently deal with cases involving separated parents: putting the welfare of the child first and upholding the right of the child to have a meaningful relationship with both parents, spending good quality time with each unless it would clearly not be in their interests to do so. It is difficult to argue against that approach continuing in the event that new legislation is passed.

But what do they actually mean for separating couples?

The ‘traditional’ hostile, aggressive approach, which remains prevalent in many other areas of litigation, is now viewed in family law as counterproductive. The reality is that this approach very rarely leads to a successful resolution of the issues that arise when a marriage breaks down – be that arrangements for children or a wider financial settlement.

Many couples seeking family law advice will already be feeling emotionally bruised, often bitter and resentful. Negative emotions can be intensified and relationships irreparably damaged.

Historically, this was amplified by the ‘aggressive lawyer’ approach. Thankfully, most family lawyers operate in a more enlightened era. Because of the very real human problems that need to be resolved (and which can affect us all), practical solutions are key in what is often one of the most distressing times in peoples’ lives. Establishing trust can very often assume as much, if not greater, significance than the legal process itself.

Good family lawyers will adhere to the Law Society’s Family Law Protocol. They may also be members of Resolution and follow the Code of Conduct. Resolution is a body of family lawyers committed to resolving family law disputes in a constructive, amicable and non-confrontational way.

Both are designed to ensure that lawyers act in their client’s best interests whilst at the same time dealing with matters effectively, constructively, and with minimal acrimony. This approach is proven to benefit families and children, who can all too often get caught up in the crossfire of their parents’ marital breakdown.

A less confrontational approach also enables couples themselves to emerge from the aftermath of their divorce intact and able to move on with the rest of their lives.

There is no substitute for good quality legal advice from a family lawyer, but there are a number of ‘alternative dispute resolution’ (ADR) tools available to divorcing spouses.

Mediation is probably the best-known solution. It is not a substitute for legal advice, but a good mediator will recommend that a couple should consult their individual lawyers for advice, regardless of what is discussed during mediation.

Encouraging a couple to meet in the same room together with an impartial mediator after a brutal separation can be daunting. However, if couples are prepared to attend mediation, agreements can very often be reached more swiftly and cost effectively than via the traditional litigation route.

Mediation is not for everyone, particularly where there has been domestic violence or one party simply feels intimidated or bullied by the conduct of their former partner, or if it is clear that one party will not make full and frank disclosure of their financial circumstances.

Another form of ADR is collaborative law. In this process, the couple and their lawyers commit to resolving issues without relying on the court to make decisions on their behalf. Specially trained collaborative family lawyers agree that they will try to resolve matters without going to court, and a series of four-way meetings take place with the aim of reaching agreement.

Experts – such as accountants, valuers, pensions experts, mediators or barristers – can be involved if and when required.  This process can be more cost effective than the ‘traditional’ route, but, again, it doesn’t work for everyone. If the process breaks down, the couple have to instruct different lawyers to take them through the ‘traditional’ court process and, in that sense, the cost could be substantial.

Arbitration is very much in its infancy, but may provide a further viable alternative to the court process. Our recent blog post (http://bit.ly/KwU7zL) on this subject gives more information.

Most people believe the only way to divorce is to go to court, when in fact there is a wide array of options available to divorcing couples. A good family lawyer will talk you through all of the options – and the pros and cons of each – in detail, so that you can choose the way that is best for you and your family.

The Court has reduced the award in favour of Mr Gallagher by approximately £320,000, reducing his share of the assets from 42% to 33%.

It will be recalled that Mr Gallagher retained their cottage whereas Mr Lawrence retained the London flat, there being a substantial difference in the value of each property.

The question for the Court was how to address the inequality in value between the two properties.

The Court decided that it was necessary to assess a fair lump sum to be paid to Mr Gallagher on the basis that he would have the cottage and a pension share and that the correct figure was £350,000, a reduction from the original award of £577,778.

After the decision was delivered, Mr Gallagher’s lawyers claimed that it was questionable whether there would have been the same outcome had this been an award based on a divorcing heterosexual couple suggesting that the award was significantly less than would have been ordered upon divorce.

Is this view correct?  Will we see awards involving same sex couples as being unfair compared to those involving heterosexual couples?

Opinions may vary, but there does not appear to be any evidence to support that view.  Courts regularly wrestle with how to treat assets which have been introduced into a marriage (or in this case, a civil partnership) by one party and there is a growing body of case law which suggests that “pre-acquired assets” may be treated differently to those which were acquired during the marriage/civil partnership.

The award given by the Appeal Court reflects the fact that whilst the Docklands flat appreciated significantly in value during the civil partnership it was a pre-acquired asset, held by Mr Lawrence prior to the civil partnership itself.

Given the absence of children, the Court was essentially in an identical position as though it were dealing with a heterosexual couple with no children.

The most high profile reported civil partnership case therefore has not raised a significant point of debate.  However, as time goes by, there will undoubtedly be further cases which will give a greater indication as to how Courts are inclined to deal with financial issues in the event of a civil partnership ending.

This week saw the issue of same sex marriage placed firmly on the Government’s agenda.

The lobbying, both for and against, has already begun and it would appear that there will be a passionate and unrelenting exchange of views in the months ahead.

It remains to be seen whether same sex marriage becomes enshrined in law.  However, the fact that the issue is once again in the news gives cause for reflection on the fact that it is eight years since the Civil Partnership Act 2004 was passed, amid similar controversy.

The Act has enabled same sex couples to enter into civil partnerships, providing couples with legal rights both during the civil partnership and upon its breakdown.

This includes identical treatment as heterosexual couples upon death, for inheritance tax purposes, and access to the same financial remedies upon dissolution of the civil partnership as upon divorce.

It is perhaps unsurprising that there have been so few reported cases involving financial provision upon the breakdown of civil partnerships, given that the Act did not come into force until December 2005.

However, this week, the Court of Appeal heard an appeal by Peter Lawrence, a financial analyst at JP Morgan, against a financial award made in favour of his former civil partner, Donald Gallagher, an actor.

Mr Lawrence had purchased a flat in 1997, prior to their relationship.  That flat had risen in value from £650,000 to £2.4 million.

The couple had subsequently purchased a cottage together which was worth £900,000.

The initial award given to Mr Gallagher comprised assets equating to £1.7 million out of a total of  £4 million. taking both the cottage and – importantly – the Docklands flat into account, and giving Mr Gallagher a share of the gain in the value of the flat.

It was argued on behalf of Mr Lawrence that whilst the same principles apply between civil partnerships and marriage, in same sex relationships it is more likely that the couple will not have children and that they will therefore each continue to pursue their careers throughout the partnership.  He argued that the award should be reduced to £620,000 on the basis that the flat was acquired prior to the civil partnership.

Mr Gallagher’s Counsel argued that he had assumed the role of the “homemaker” and that the couple had regarded the properties as their pension.

The Court of Appeal has reserved its decision, but it will be interesting to read the court’s approach and interpretation of the law once the judgement is given.  Are existing principles in divorce cases to be applied (for example relating to relationship generated disadvantage) on the basis that the court considers one of the parties taking the traditional ‘wife’s’ role or will the court be less inclined to intervene to redress inequalities in the couple’s respective financial positions?

This case perhaps highlights the obvious fact that same sex relationships can and do fail and it can be somewhat difficult to achieve “fairness” – the holy grail of the courts.

Would a prenuptial agreement have saved the couple time and money?  Very possibly.  Which illustrates that there is no substitute for legal advice both prior to entering into civil partnership, and if that relationship ends.

Heightened emotions can cloud judgement; and clients often come to us with agreements they have reached with their former partner, which – on closer inspection – are either grossly unfair, unworkable, or have serious hidden tax consequences.

We also see people who, with the best intentions of ‘keeping things amicable’, simply aren’t aware of the full legal and financial consequences of what they are agreeing to.

As soon as the pitfalls of a home made agreement become clear, the initial relief of having reached an agreement is replaced by the sobering realisation that, at worst, they were about to be taken advantage of and, at best, they were about to enter into an arrangement that might have left them in a difficult financial position in years to come.

After all, what is ‘fair’ can be hard to define. Each person will have their own view on what they think is fair, particularly if one blames the other for the breakdown of the marriage.

Even the most amicable separations shouldn’t ignore expert legal advice. An experienced family lawyer understands the emotional toll divorce takes, and can give you advice and reassurance throughout the process. They will also make sure that each person makes full financial disclosure and that all relevant circumstances are taken into account during negotiations about finances. That experience can save you valuable time and money in the long run.

A specialist family lawyer will also make sure the agreement you reach is watertight, and that the court order embodying the agreement is clear, that it covers everything it needs to cover and is capable of being implemented and enforced if one person fails to abide by it.

Home made agreements usually fall short because couples don’t understand or consider the full legal and financial consequences of what they are agreeing to.  Even the best-intentioned agreements should be checked by a specialist family lawyer to make sure that things don’t end in tears and recriminations, and – importantly – save you money in the long run.

Arbitration is the latest in a series of ‘alternative dispute resolution’ (ADR) initiatives that aim to keep divorcing couples out of court when it comes to reaching financial agreements or resolving disputes relating to their children. They all share the same goal – reducing acrimony (and expense).

It stands to reason that if a separating couple can keep their relationship civil, their children will benefit. The alternative is having their children watch them embark on a civil war that will no doubt cause untold damage, both to the children and to the couple themselves.

So what does arbitration add to the mix?

It enables divorcing couples to choose and appoint their own trained arbitrator, who will most likely be an experienced family lawyer.  The advantage is that the same arbitrator will deal with matters from beginning to end, and the couple and their lawyers can dictate the pace of the process.

In many ways, the arbitrator’s role is similar to that of a court judge, as they can make a final decision on the part of the separating couple.  The arbitrator can also advise the couple on the extent to which financial disclosure should be made, helping control costs spent on expert witnesses.

So is the arbitrator’s decision binding?

The reality is that only a court can make a final order.  However, following recent court decisions in respect of pre- and post-nuptial agreements, it is expected that courts will generally uphold awards made under the arbitration scheme.

After all, the aim of arbitration is to provide a fair outcome.  Therefore, if the people involved have had the benefit of legal representation throughout and have made full and frank disclosure of their means, it is difficult to foresee circumstances in which a draft order embodying the terms of the arbitration award would not be approved by a court.

What of the future of arbitration?  It is difficult to say.  It is a very new process and only time will tell whether it is one that divorcing couples and lawyers find preferable to the traditional court process.  It will also be interesting to see how arbitration settles in alongside other processes, such as collaborative law and mediation (more on those soon).

The CSA has been widely criticised for delaying the completion of child support calculations; for inaccuracies in assessments; and for its inability to properly enforce payments to parents who desperately need the funds to support their children.

Many non-resident parents also feel let down by the agency because of the long delays associated with payment calculations. There are cases of people being faced with enforcement action many years after an assessment has been made.  Often, the non-resident parent has not been made aware of arrears and in a number of cases the arrears figure provided has actually been wrong.

Due to these reported problems, many divorcing parents decide to take an alternative route and agree child maintenance in a Court Order.  Unfortunately, Court Orders only overrule the CSA’s power for 12 months. This means that if there is a disagreement regarding payments after 12 months from the date of the Order, either person can apply to the CSA for a maintenance assessment.

This “12-month rule”, is a contentious issue amongst child support specialists, who believe that the 12-month rule prevents couples from reaching agreements themselves because of the relatively short “shelf life” – why agree, if 12 months down the line one person could rip apart the arrangement in an application to the CSA?

The CSA argues that the rule is beneficial because it gives parents access to a free scheme and enables them to have payments re-calculated to ensure they are continuing to receive the money they are entitled to.  However, from this year, people will be charged to make an application to the CSA or to request that it collects maintenance on their behalf.  The Government is today considering the Welfare Reform Bill dealing with this very issue in Parliament.

In theory, the ability to make an application to the CSA after 12 months can work if you are happy with the assessment the CSA makes.  But in practice, what happens if you want to appeal the calculation?  Your case will ultimately be resolved by a Tribunal Judge as the CSA doesn’t have the power to rectify it. This then incurs additional legal costs and causes further delays, begging the question – is this rule having the desired effect?

If parents opt to make an agreement in the form of an Order, should they not be able to rely on that Order for the duration of the children’s minority – or at least until their circumstances change?

Kim Fellowes, a Partner at Silk Family Law, is currently lobbying the Government for change.  As the Chair of Resolution’s National Child Support Committee, Kim is urging the Government to reconsider this rule, which effectively renders Court Orders redundant after one year.

What do you think?  Is the 12-month rule unfair?  Should we restrict the Court’s powers regarding child support payments?

If you have been affected by the 12-month rule please let us know.

It’s reported that Facebook is now cited in nearly a third of divorce petitions relying on their partner’s unreasonable behaviour.  There has been an increase in clients referring to Facebook when providing accounts of their spouse’s unreasonable behaviour, but this is not always the catalyst for marital breakdown.  Facebook comments are also commonly quoted as evidence of harassment or perhaps an alleged affair.

So, is Facebook having an impact on the divorce rate?  Probably not.  More likely the networking sites enable relationship difficulties to be expressed publicly.  The reality is that social networking sites are used by many as a means to communicate with old friends and make new contacts and quite possibly to search for an old flame and rekindle a previous relationship.  There is also the added risk of being “tagged” in an embarrassing photograph, which is difficult to explain to your partner – creating further difficulties if that photo is not deleted before it’s too late.

The more probable reasons for the reference to Facebook and Twitter in cases is that the site records those personal comments, which may be posted when feeling emotional, which in hindsight would not have been aired.

Before social networking sites people would have normally communicated their frustrations by telephone or over a drink in the pub.  The problem with social networking is that these comments which would normally have been expressed in private and trusted company, enter the public domain and can been seen by a much larger audience of ‘friends’ and ‘followers’.

Is Facebook contributing to divorce?  Or are the references in divorce papers simply a sign of the times?  Let us know what you think.

Whilst many predicted the marriage wouldn’t last, Katy and Russell remained optimistic and decided against protecting their individual wealth with a pre-nuptial agreement.  Russell reportedly commented that he wished to preserve the sanctity of marriage claiming he was entering in to the marriage for love and that “he ain’t having no pre-nup.”

This was certainly a wise move for Russell, but it turns out it may not have been a great decision for Katy.

As a result of her global success, Katy is reported to have individual wealth in the region of $44 million, with Russell now allegedly being worth in the region of $15million.

The Los Angeles divorce court deals with matrimonial assets in a similar way to the UK courts – the starting point is a 50/50 division.  This could see Russell walking away from the 14-month whirlwind romance with a handsome sum – not quiet the romantic happy ending Katy may have envisaged on her wedding day.

Can it be said that this division is a fair one in circumstances where there are no children and more than enough money to see both Katy and Russell living lavish lifestyles after the divorce?  Some would say definitely not (including Katy!).

Pre-nuptial agreements are enforceable in the state of California.  Had the couple entered into an agreement, they would have begun divorce proceedings with certainty, not to mention a much lower cost estimate for legal fees.

Whilst pre-nuptial agreements are not for everyone, it is important to remember that they certainly are not just for the ‘super rich’.  The English courts now recognise pre-nuptial agreements as a consideration within divorce proceedings and they are fast becoming a popular mechanism for couples to safeguard their pre-owned assets.

Anyone entering into a marriage with individual wealth that they would not wish to share with their spouse in a divorce should consider a pre-nup.  It might not always seem like the most romantic thing to do, but it could save a lot of heartache should the marriage end.

For Katy, the cost of romance may see her losing up to $20million – was it worth it?

It has been reported that an unhappy wife in Reading hung a banner on the M4 sending a clear message to her husband this December – “FOR XMAS DAN, JUDE WANTS A DIVORCE.”

Of course, not everyone who is unhappy in their relationship will be that explicit, but it does reflect the fact that the stresses and strains of Christmas can, for a lot of people, be the final straw in a troubled relationship. It also amplifies the distress and frustration that many people experience after separating from a loved one.

Christmas can also be an extremely difficult time for parents and children who have recently experienced a separation. Katie Price was famously tearful in her reality TV show that her first Christmas without two of her children present was “the worst Christmas ever”. This feeling is a reality to many who have been caught up in often contentious Christmas contact disputes when previously they have become used to seeing their children on Christmas morning. Alternating Christmases seem incredibly daunting to many children and to their parents.

The thing to remember is that you are not alone. Extensive support systems are available, not only through specialist lawyers but also through counselling services, with other conciliation services abundant across many regions.

And although Christmas can be tough, a new year can often bring with it a sense of moving on and clarity. For many, January is a time for resolutions and looking to the future. The key is to know that there is help and support available to you if you are separating or divorcing, and to make use of it.