All posts by Frances Place

Pensions on divorce

In order to reach a financial settlement in divorce proceedings it is necessary to obtain the cash equivalent value of any pension acquired during the marriage.

This is the value the pension fund would have if it was transferred out of one scheme into another on a given date. A cash equivalent value is not exactly the same as cash. A cash equivalent value is basically the right to buy a pension for a given amount of money at some date in the future.

Types of pensions
Pensions are often defined contribution schemes, also known as money purchase schemes. With these pensions the benefits are provided by sum of money accumulated over time. The accumulated sum is used at retirement to provide an income, such as by way of buying an annuity. Lots of private pensions are this type of scheme.

In the public sector pensions are often part of a defined benefit scheme, where the benefit payable is defined as an amount according to a formula at retirement. Examples of such schemes would include civil service, NHS and teachers pensions.

Ways of dealing with pensions
Off setting
Frequently the only significant assets owned by a couple when they separate are the family home and one pension (often accrued by husband). For example, a family home with an equity of £100,000 and husband’s pension fund with a CE value of £50,000. Instead of saying that the former family home should be sold and the proceeds divided equally between husband and wife and the pension should also be divided equally, another way of dealing with matters which might make more sense would be to say the wife should have the house and the husband should retain the pension. This would provide accommodation for the wife and possibly children whilst allowing the husband to retain a substantial asset.

Earmarking
The difficulty with offsetting is it may not provide the wife with the possibility of a pension at all. This might particularly be the situation for older women who had never worked or only worked part-time. The husband might still have an earning capacity and can build up pension provision whereas the wife would not be able to do this. In order to address this problem earmarking was introduced as a possible solution. With earmarking the courts have the power to earmark a certain percentage of future pension benefits for the benefit of the wife. This would usually take the form of an order addressed to the trustees of the husband’s pension fund directing them to pay a given percentage of his future pension benefits to the wife. This would apply to both any lump sum he might receive and also to the pension payments he would receive.

The wife would only receive any benefits when the husband takes his pension entitlement. If he were to die before taking either of these then the wife would lose any benefit of an earmarking order. Earmarking is something which is always capable of being varied and so does not create a clean break between husband and wife. For these reasons earmarking is uncommon in practice.

Pension sharing
Pension sharing means that a court can order a pension provider to split a pension so that both husband and wife have separate, independent pensions. There is no requirement that they should be split equally. The percentage which will be transferred to a pension, usually for the wife will depend on the circumstances of the case. If, for instance the wife has already received the bulk of the other assets of the marriage she might not receive as much as 50% of the husband’s pension. With pension sharing the wife no longer has to wait until her ex-husband takes his pension benefits in order to take her pension benefits. She has her own independent pension provision and will not lose this pension if her husband happens to die before reaching pensionable age.

The pension is split at the given date. The pension trustees inform the court that the husband’s pension fund has a certain value at a given date. The pension is split using that date and these figures. The wife will not benefit from any further contributions paid into the pension fund by the husband from that date onwards. The husband is still able still able to rebuild his pension provision if he wishes.

There can be significant costs in pension sharing. A pension provider may seek up to £2000 to implement a pension sharing order.

Pension sharing requires a court order.

Problems with valuing pensions
How pensions are taken into account will vary greatly from one divorce case to another. For example, if both spouses are fairly young and have negligible pension provision it may not an important part of any settlement. If both husband and wife have been working during the marriage they may have fairly comparable pension provision.

The CE value of a pension does not necessarily value a pension accurately. For example, people working in the public sector often have rights to retire early while taking a full pension. The value of such a pension is not necessarily accurately reflected in its CE value. A pension to a person in good health is in reality worth much more than the same pension to a person in poor health. Women tend to live longer than men and so a given pension pot will typically provide less by way of pension income for a woman than for a man.

In cases where the value of pensions is substantial it may be necessary to instruct an actuary in order to work out what the effects of various methods of dealing with the given pensions would be in retirement.

Child support

The Department for Work and Pensions (DWP) is now responsible for the child maintenance system in Great Britain. It both funds information and support for separating parents and runs the child maintenance schemes. As of the beginning of 2014 all CSA maintenance cases will be closed or transferred to the new Child Maintenance Service

The government is keen for families to make their own private arrangements for child support.  However if they cannot do this there are other options.

  • The Child Maintenance Service (CMS) which is available for those parents unable to make their own arrangements can provide something known as Direct Pay. The CMS will work out payment amounts due but will not get involved in collection or enforcement. This can be a good option for parents who cannot agree how much payment should be.
  • The CMS can get involved in enforcing the payments. This cannot be set up within 12 months of a consent order. There is a fee of £20 to use this service.
  • CM Options is another service provided by CMS to give information and support to parents to help them decide what to do about child support. The website to refer to is www.cm options.org

Child Maintenance Calculator
This calculator (on the CM options website) can give you and idea of how much you can expect to receive or pay in child maintenance.

CM Calculator

The formula for working out payments
(Gross income is defined as before tax and NI is taken off but after pension contributions are deducted)

Gross weekly income up to £800    BASIC RATE applies
One child            12%
Two children            16%
Three more children        19%

Gross weekly income between £800 and £3000    BASIC PLUS applies to the excess over £800

(£3000 is the highest gross that will be taken into account)
One child            9%
Two children            12%
Three or more children    15%

e.g. Andy has three children and has a gross weekly income of £1200 after deduction of pension. To calculate child support he would have to use the basic plus rate.
Andy will pay 19% of £800 = £152. He will also have to pay 15% of £400 = £60. Total £212

Default maintenance position
If parents cannot agree on how much maintenance should be paid the paying parent might have to pay a default rate based on the number of children until the CMS has the information required

One child            £39 a week
Two children            £51 a week
Three or more children    £64 a week

Note that the age limit of the child has increased to 20 from 19,  provided the child is eligible for child benefit

Second family children
Second family children living with the non-resident parent (NRP) are referred to as the ‘relevant other children’. The number of ‘relevant other children’ in the household reduce the gross weekly income of the NRP by a percentage as follows:

For one ‘relevant other child’ reduce gross weekly income by 11%, for two relevant other children reduce gross weekly income by 14% and  for 3 or more relevant other children reduce gross weekly income by 16%

Eg Peter earns gross £500 a week, after deduction of pension.  He has 2 children not living with him by his ex-wife and 1 child by his new partner.  To calculate child support deduct £55 (11% of his gross income). This leaves a balance of £445. For the 2 children not living with him he pays 16% of the balance, £71.20

Reduced rate for gross income between £100 and £200 a week
The amount of maintenance to be paid is worked out as a flat rate of £10 in the first £100 of gross income plus a percentage of the gross weekly income over £100. The percentage varies according to the number of qualifying and relevant other children to ensure that liabilities increase smoothly as gross income increases from £100 to £200.

Parents on benefits will pay a flat rate of £10 a week

Shared Care
If parents share care of their children, then the amount of maintenance to be paid by the non-resident parent can be reduced to reflect this. If there is to be shared care arrangement that the number of nights spent with the non-resident parent is 1 then a deduction of one seventh will be made. If two nights a week are spent with the non-resident parent then a deduction of two sevenths will be made.

Eg Chris has 1 child with his ex-wife who does not live with him.  Chris earns £450 gross per week, after deduction of pension.  His daughter Amy spends 1 night a week with him.  He is liable to pay 12%, £54 a week, less one seventh, £7.70 so Chris will pay £46.30 a week.

Principles guiding decision-making –‘Section 25 factors’

A court will always take into account the needs of a child under 18 as a priority when financial matters are being resolved. In addition Section 25 (2) (b) of the Matrimonial Causes Act 1973 sets out a number of factors which the court should take into consideration when deciding on applications made in divorce proceedings.

These are factors that any separating couple might like to take into account when they are reaching their own decisions, bearing in mind that they may wish to obtain the court’s approval to the terms of any financial agreement they reach.

The factors are:

  1. The income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that earning capacity which it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire.
  2. The financial needs, obligations, and responsibilities which each of the parties has or is likely to have in the foreseeable future.
  3. The standard of living enjoyed by the family before the breakdown of the marriage
  4. The age of each party to the marriage and the duration of the marriage.
  5. Any physical or mental disability of either of the parties to the marriage.
  6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
  7. the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it
  8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

In addition in respect of pension arrangements the court must look at

In the case of paragraph (1) any benefits under a pension arrangement which a party to the marriage has or is likely to have and
In the case of paragraph (8) any benefits under a pension arrangement which, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring

Ages and stages of children

Divorce and Separation: What is best for my child?

At almost every stage of their development, the most important thing for a child to know is that they are not to blame for their parents’ divorce or separation. This can be expressed in words, but must also be communicated in parents’ actions. A second consistent need for children of all ages but particularly for younger children is predictability, routine and structure.

Key features for each age-group:

From birth to 1 years old: Children learn to bond with one or both of their parents. They need to learn to form healthy attachments and experience stable and secure relationships. Children of this age will show distress by crying excessively, by having feeding or sleeping problems or by being withdrawn, irritable and depressed.

1 to 3 years old: During the toddler years children start to use language, begin to explore the outside world and start to want to exercise control over what happens to them. Often they can’t remember people who they don’t see often. They need to know that a loving parent is available to them and they thrive on security, love, and flexibility. A distressed child of this age may be withdrawn or clingy or may change his eating or toilet habits. Crying that lasts for more than twenty minutes is an indicator of distress. Extreme distress may result in developmental delay.

3 – 5 years old: Between 3 and 5 children start to engage more with the outer world and start to form their first friendships with other children. They begin to understand why their parents set limits or make rules. They become better at remembering people who they do not see all the time. They need consistent discipline. They need to be free from direct parental conflict. Many may benefit from spending time with each parent separately. Distressed children of these ages may regress in toileting, sleeping and eating. They may be irritable and clingy or show signs of anger or behavioural problems.

5 – 8 years old: At this age children begin to differentiate more between fantasy and reality. They start to notice gender difference and their relationships with other people start to deepen. They also develop a strong sense of fairness. It is important at this age to maintain structured and consistent time with each parent. Parents should also support their school and extracurricular activities and their expanding friendships and interests. A child this age who is distressed may complain of constant headaches, tummy aches etc. They may have trouble sleeping. They may wet the bed or use baby talk. They may begin to start to blame one or other of their parents for the separation.

9 – 12 years old: Children need to develop self-esteem and feel good about their friends and their physical development. They start to form their own values and test those of people around them. Their peer group becomes more important to them. They need to know that parents are there to give support when they need it. They need to know it is OK to love both of their parents even if they are not together, and they need to be able to communicate with their parents about their feelings. A child of this age who is distressed may withdraw from their friends and from social activities. Some compensate for distress by becoming ‘too good’. Others manifest rebellious behaviour or depression.

Adolescence: Teenagers being to develop greater independence from their families. Their sense of morality may strengthen. In forming their own identities they may need to express resistance and disapproval of those around them. (Just like the two year olds who need to say No a lot). They can be naturally self-centred. They want to be treated with flexibility and understanding. They may want a greater say in how parental contact is structured. They need positive role models. They need to be given consistent boundaries. Distress can be expressed by excessive anger, negativity and isolation. Others may try to be ‘perfect’. Some find school or friendships difficult. They may experiment with alcohol, drugs and sexual promiscuity.

New! Changes from April 1st 2013

As of 1 April this year, the government is hoping to trim some £350m from the £2bn Legal Aid budget by scrapping almost all Legal Aid for private family law cases.
Legal Aid will only be available for Family Law cases involving allegations of domestic violence and abuse. The government is placing new emphasis on family mediation as a way to resolve family disputes, hoping that fewer of these cases will end up in court.
Family mediation is the process by which separating couples can side-step traumatic and divisive courtroom battles, by working with an independent mediator to resolve disagreements over arrangements for their children and how to divide up finances.

Quicker and cheaper

The government has said it will increase the amount of money it provides for legally aided family mediation, upping spending by £10m, taking the total spent on mediation to £25m. National Audit Office figures show that, on average, mediated cases are resolved around four-times quicker and cheaper than cases that go to court.

Family mediators are pleased by the change of direction, but worried about how people will access their services. Mediation is still relatively unknown to the general public. How will people know that legal aid is available for mediation? And how will people find reputable qualified family mediators?

Judges are concerned that the cuts in legal aid will mean there will be a rise in the number of litigants in person who inevitably take up more court time and may increase the backlog of family law cases. And some solicitors say that focusing legal aid on family law cases involving accusations of domestic violence may provide a perverse incentive for these allegations.

As someone who has worked as a family mediator for more than 15 years, I see this April as a time of uncertainty, but also of great possibility that in the future mediation will become the norm. Mediation will be first port of call for separating couples.
Another reason why mediation looks set to grow are rules that came into effect in April 2011, which meant that judges are supposed to ensure that all separating couples who are embarking on the court process have at least considered mediation.

Mediation information and assessment meeting

Couples are supposed to try what is called a ‘MIAM’ (a mediation information and assessment meeting), during which the benefits of mediation are explained and the couples’ suitability for mediation assessed. In fact, in many parts of the country judges have been ignoring this directive and it is planned that from April 2014 legislation will be introduced to make MIAMs compulsory.

A Ministry of Justice study has shown that when couples use mediation first, before getting to court, they are more likely to be able to continue to mediate their disagreements. The report also showed that fewer people needed further assistance with arrangements for their children after using mediation.

Family mediation is not only quicker and cheaper than litigation.  It is able to provide solutions to family disputes that are tailor made to individual needs, as opposed to Court imposed decisions which tend to be formulaic. Frances Place who runs Progressive Mediation, a  family mediation service based in Bristol, describes the way in which mediation can address the minutiae of how a separation will work:. ‘With one couple we talked about nurseries, bedtimes, dropping off plans, birthdays, holidays, extended families and telephone calls’. The formal legal process is wholly ill-equipped to do this sort of thing.

Mediators can also work with parents on to how to break the news of separation or divorce to their children, a difficult issue for separating couples, but one that is always best planned jointly.

Research shows that twelve years after separation, couples who have gone through the mediation process are still reaping the rewards. Both parents are more likely to have a good relationship with their children, and an ability to communicate as parents in the interests of their children. So rather than being seen simply as a way to cut costs, or to ‘keep things out of court’ the real value of mediation can be seen in the way in which it helps to improve outcomes for the children of separated parents.

Far too many of our children today have been scarred by the effects of parental conflict exacerbated by an adversarial court system. Divorce and parental separation is a fact of modern life which will not go away.  Family mediation provides parents with an effective way of managing the process and it consequences.  The evidence is now overwhelming that, in cases in which a marriage or conjugal relationship has irretrievably broken down, family mediation offers all concerned, and in particular the children, the best chance of moving on to new life challenges in the most constructive way. . As one of my former clients once put it: “If it hadn’t been for mediation, we’d still be fighting now.”

What do children want?

In November 2012 a new study has been published into the perspectives of young adults who experienced parental separation in their youth.

The report contains a list of the ingredients of successful contact which it identifies as:

  1. Parents involving children in the decision making
  2. Little or no post separation conflict between the parents
  3. No domestic violence or serious concerns about the care the non-resident parent could provide
  4. The resident parent encouraging the relationship between the child and the non-resident parent
  5. The non-resident parent making time for the child
  6. The child feeling equally at home in both the resident and the non-resident parent’s home
  7. Either the non-resident parent not re-partnering, or the child getting on well with their new parent.

How do we tell the children?

Telling children that you are splitting up is painful and difficult. You may have already worked your way along the difficult path to the decision to separate or divorce. Your children are only just starting out on a journey that you may have more or less completed. It will often come as a great shock to them, even if they have already suspected that it might happen.

What you have to do is extremely difficult for any parent and very painful for the whole family. In facing up to it, try to remember that many parents have had to do this before you. And, on a positive note, if this is done with love and care by the two of you together, the children can survive it without too much damage: as long as both follow it up with the same long-term love, care and consideration for your children as you did when you were partners.

You know your children best and are in the best position to think about their frame of mind and to look at what you both feel will be the most appropriate way of dealing with the situation. There are no hard and fast rules for how you should break the news. One of the difficulties is that you may hold very different views about the state of your relationship. It is, of course, very common for one of you to be clear that the relationship has broken down and the other to want reconciliation. Being sensitive to this with the children is one of the hardest challenges, but it is essential that they receive one clear explanation of the situation and are not asked to choose between competing views or judge who may be to blame. There are some important factors that are common to all children:

  • You need to consider their need for security; they need to know that you will both always be their parents.
  • They need the opportunity to express themselves and their feelings in whatever way they feel able. This could be anything from extreme anger to complete silence.
  • You will need to weigh up whether you tell each child on their own, all together or a combination. You need to make a joint decision as to which way both of you feel will be the best for your children and for you as their parents.

Telling the children together

If you can manage to speak to them together, this will give an opportunity to them to see you you’re not blaming each other, that they don’t have to take sides, and that you are both still there for them.

Think about your own emotions. Will you be able to do this without getting into further conflict between the two of you? If you feel you can, then try to think through together the sort of questions your children will be likely to ask. How will you answer them? Decide which questions you may not be able to answer and how you will explain that at the moment you do not know all the answers.

Even if it is not possible to speak to them together, try to agree a common form of words so that they can trust you are not undermining each other, or drawing them into any argument.

Where to do it?

At home is best if possible. It will feel safer for children and if they are upset they can show their emotions. If you are away from home, your task, and theirs, is much more difficult. Think about how you can make physical, emotional and practical space for children to show their emotions. Allow plenty of time so that you can cope with the immediate reactions, and remember to be available at all times for delayed reactions.

Be honest…

Don’t hedge and don’t retract what you have said because they’re upset. This will only cause more pain later by setting up false expectations that cannot be realised. It is important to be reassuring; but without making unrealistic promises. This is a very difficult task for parents, as we never want to feel that we have deliberately upset our children

?…But be realistic about what your children can understand

Think about what your children can understand at this stage. They are not adults and their perception and understanding are at a different stage. And remember: you are the people they love most and are closest to in their whole world. That won’t change for them. They do not need to hear from either of you the faults of the other.

Allow children to express their emotions

There may be tears, anger, pleading, promises of good behaviour, fear, bravado, denial. Don’t try and stop this. Simply tell the child that you understand and know that it hurts, but you will try to help them so that it hurts less. Make sure they understand that what has happened is not their fault and not because of anything they have done, but a decision made between their two parents.

Give them information – but not too much

Give them details of future arrangements if these have been decided. Probable timing of events can be helpful for older children, but do not overwhelm them with too much information at first. Keep information to what you judge they can take in initially. Think about the age of each child and your own close knowledge of their level of understanding and be guided by that.

You can tell them, if you wish, that you’re going to see people to work out what is best for all of you and that you will tell them as soon as you know anything, if this is appropriate. Be specific, but don’t over-explain. Try not to involve them in the solution or decision-making unless they are old enough, and even then be aware that many children still prefer their parents to be arbiters of what is best for them.

If one of you is moving out

It can help to involve the children in the move. Show them around your new home, and where their room will be when they visit you. Children worry a lot about the parent who is moving. Will he or she have enough to eat? Will they be all right? Involving them can reassure them and make sure that the worries are minimised. Of course, it may not be possible to do this, if for example, the parent is moving away. If this is the case tell them together what the visiting arrangements are if you know them so that they feel reassured that they will be seeing you regularly.

Talking it over

It can be helpful for children to talk to their friends. They may well have parents who have separated and can be reassuring. Watch out if your child tells no one and be prepared to reassure them yourself that what is happening often happens in other families too. Ask them if they know anybody in the same situation. Tell them that you understand that sometimes it’s difficult to talk.

When your children talk to you, don’t be surprised if they tell each of you quite different things about the same situation. They will want to show their love and loyalties to you both, and also, sometimes how cross they are or how unhappy. If you can manage as adults to keep talking to each other through this, it will help the children to understand that you remain, as their parents, united in your concern for them.

Reassure the children

Reassure children that you will both go on being their parents. The fact you and your partner are unable to get on well together any more does not in any way alter your feelings for them. Make sure you tell them that you will be always be their mother and father, and that your love for them will always remain the same.

In mediation we can talk about this important issue of what you should say to the children when you separate. Contact Frances or Charles at Progressive Mediation 0117 924 3880 or www.progressivemediation.co.uk

The happy medium

When your relationship has crumbled, and you want to cut your ties as soon as possible, it seems easy to head straight to a divorce solicitor. But there is another way.

Mediation is a calmer and cheaper way forward. As part of a radical rethink in the way that divorces are handled in this country mediation is being promoted as the first port of call for anyone considering separation. The Family Justice Review which was published on the 3rd November 2011 has recommended the creation of a Family Justice Service to include increased provision of mediation at an early stage to prevent cases going to court unnecessarily.

Anyone considering making an application to the court to sort out arrangements for children or finances following separation will be required to attend an initial Mediation Information and Assessment Meeting(MIAM) with a mediator so that an assessment can be made on the most appropriate way forward, for instance by working through a parenting agreement in mediation. If there are children involved the parents will have to attend a Separated Parent Information Programme (SPIP) to discuss ways of minimising conflict and increasing communication between parents, with the expectation they will then attend mediation after. It is only after they have attended a MIAM and SPIP that they can make an application to the court. There is concern not only about the huge amount of public money that is spent on divorce and separation but also about the long-term effect on children and society of separating couples who remain in conflict for years after their separation.

A family mediator will sit down, and work out with a separating couple how to divide any assets up in a practical, realistic and fair way. We start by setting out certain guidelines, neither party is allowed to interrupt or speak over the other person for example, it is important that people listen to each other. A major goal is to make sure children’s views are taken into account and that they are listened to. There is increasing evidence that children’s needs will be met by minimising conflict between their parents and assisting parents to communicate in a constructive way together about their children.

Research shows that 12 years after separation, couples who have gone through the mediation process are still reaping the rewards with a much happier outcome and an ability to communicate as parents in the interests of their children.

Family affairs

Sally and Brian came to see me recently. They were still living in the same house. Sally wanted to stay in the family home with their two children, a six-year-old boy and an eight-year-old girl. Tension was rising because Brian was refusing to move out of the house. Brian told me he was terrified he was going to lose the children and that is why he wouldn’t move out. He said he did not want to be a ‘Saturday’ parent. Putting legal terminology aside, such as custody, access, residence and contact we spent the session focusing on the reality of their day-to-day lives and what arrangements were possible. Using a flip chart, we worked out a schedule of arrangements for the children which suited both parents working patterns and the children’s activities.

A sense of equality

Sarah and Tom came to mediation. They wanted to separate and reach a financial settlement and work through the idea of a shared arrangement for their two-year-old daughter.

The couple spent the sessions looking into the practical side of how 50-50 shared care pattern would work in reality. They talked about nurseries, bedtimes, dropping off plans, birthdays, holidays extended families and telephone calls.

Splitting the sessions in half, Sarah and Tom were able to work through financial issues too and reach an agreement to move them both forward, enabling them both to buy a new property.

If you think family mediation might help you or anyone you know look at my website and get in touch.

 

Separation or divorce: why mediation may help you do the sums

Dividing up assets

When a married couple separate or divorce they often need to divide up their assets and deal with any liabilities so that they can both move forward. The law considers marriage a partnership and if a couple resort to the courts, the courts will take into account all assets the couple possess, whether  together or separately.  Below is a summary of the ‘section 25 factors’ which are enshrined in the Matrimonial Causes Act.  In particular the court will consider:

  1. The income, earning capacity, property and other financial resources which each of them has or is likely to have in the foreseeable future
  2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  3. The standard of living enjoyed by the family before the breakdown of the marriage
  4. The age of each party to the marriage and the duration of the marriage
  5. Any physical or mental disability of either of the parties the marriage
  6. The contribution which each of the couple has made or is likely to make to the welfare of the family and this includes looking after the home or caring for the family
  7. In extreme cases, the conduct of either spouse
  8. The value of any benefit which will be lost on divorce, for instance pension rights.

It is better both financially and emotionally for couples to negotiate if at all possible either between themselves or through mediation rather than resorting to the courts, and the above factors can be taken into account in the negotiations. Together a couple can decide which factors are most important to them in order to achieve a realistic settlement rather than leaving it to the court to decide on an arrangement which may be less attractive to both parties.  But the court is always a last resort.

If you are an unmarried couple do not go to court

From a legal point of view the situation for unmarried couples separating is very different in terms of division of assets.

The law focuses on property rights, rather than taking into account the above factors to help achieve a fair and realistic settlement.

For unmarried couples it is sometimes possible for an individual to argue that they made a contribution to an asset  not in joint names.  They can go to court to try and prove it but litigation can be very expensive, can take a long time and the outcome can be very uncertain.

For an unmarried couple mediation can be very beneficial because there they can consider whether they have they to all intents and purposes lived together as if they were married.  If the answer to this is ‘yes’ then it is perfectly possible to negotiate a settlement together which to them seems realistic and fair, taking into account some of the above factors rather than just looking at property rights.

If a couple has children, and both parents are really putting the interests of the children first, they will want to find a fair financial outcome that everyone can live with and will want to maintain a reasonable relationship where they can continue to communicate as parents. Simply dividing up finances looking at the law and property rights may make this hard to achieve.   Where there are children often one partner’s earning power is greater than the other but the law as it stands would not take this into account for an unmarried couple.  Justice, it seems, is not always fair.

Shared Care for Children – could it work?

Fierce controversy has characterised discussions this month of whether separated fathers should have the right to equal time with their children. In November 2011, the Family Justice Review rejected the idea – but by February 2012, children’s Minister Tim Loughton had stated it was important that decent and loving fathers are not pushed out of their children’s lives.

The latest news from Government is that when disputes are settled in court, it will promise to find ways to ensure that every father has a right to access to their children, unless he poses a safety or welfare risk. An extra £10 million will be available to parents for mediation to reduce the number of children’s contact cases going to court – because if both parents are to maintain meaningful relationships with their children cooperation is key, and acrimonious court proceedings don’t help.

However, the fundamental discussion should be in every case what the children need: whether it is equal time with both parents, some sort of sharing arrangement, the right to contact with one parent or no contact at all.

These pointers indicate when a shared, although not necessarily equal , pattern of care might work – suitability may well depend on whether each parents answers yes or no to the questions:

  • Can you communicate and negotiate fairly well about the children?
  • Do you basically respect your ex as a parent despite your relationship disappointments and personal differences?
  • Can you put your personal disagreements and conflicts to one side and focus on what the children need in a given situation?
  • Is there a compromise and give-and-take when there are disagreements?
  • Can you share control and respect the autonomy of the other parent’s household?
  • Are your fundamental child-rearing values and practicalities similar?
  • Can you tolerate your differences without seeing them as detrimental to the children, and can you distinguish between the important and unimportant differences?
  • Do you value what the other parent has to offer your child?
  • Are you willing to tolerate the personal inconvenience and extra work in coordinating schedules?
  • Is your child able to handle transitions?
  • Whilst you were together were the child-rearing tasks shared (not necessarily equally)? If not, is there a commitment to increase sharing now?

The length of this list shows you just how important cooperation is. If you’re prepared to begin negotiating with your ex-partner regarding the care of your children, then it’s time to consider making an appointment for mediation.

Separated Parent Information Programme

If you are separating or divorcing and you have made an application to the court to sort out living arrangements for your children the court may have ordered you to attend a Separated Parent Information Programme (SPIP). You may feel reluctant to attend. You may want to know more what is involved.

Attending a SPIP will give you the opportunity to meet other people in conflict with their ex-partners over arrangements for the children and give you the opportunity to hear from two experienced trainers, often mediators, about the impact of divorce and separation on children and to discuss ideas to help reduce conflict and improve communication between you and your ex-partner. Research has shown the separation doesn’t have to harm children if it is handled well; it is conflict that has a negative effect.

You will watch a DVD made by children, following a family through a separation. The DVD focuses on what children feel as their parents separate and what they need from their parents.

There are discussions and tips on how you can try and communicate better with your former partner, even if they are being very difficult and do not seem to be cooperating. There are discussions about the emotional aspects of divorce and separation, tips on helping you look after yourself and on how you can move forward, putting the past behind you.

Parents are sometimes reluctant to attend but most parents who do attend find it a very helpful experience.

Putting the past conflict as a couple behind you isn’t always easy; talking to other parents in similar situations and hearing from experienced trainers can sometimes help give you ideas on how to move forward and find ways of working together as separated parents.

You will learn amongst other things:

  • That you should try not to fight in front of the children or ask them to choose sides
  • That your children may have different feelings to yours
  • That you should think about what you can do, not what your ex-partner should or shouldn’t do
  • That you should focus on what has worked, not on what hasn’t worked
  • That small steps can lead to big changes
  • To look after yourself and be the best parent you can

So if you are ordered to attend a SPIP don’t be negative or try and avoid going; you will hopefully find it a useful and informative day.