Blog posts in Personal law

The power of mediation

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 public funding is available for mediation? And how will people find reputable qualified family mediators?

Judges are concerned that the cuts in public funding 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 now thought that legislation may be needed 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.

As well as being quicker and cheaper, family mediation can provide solutions to peoples' disagreements that are tailor made to them as individuals, rather than court-imposed decisions that may not suit their needs. 

Mediation can get into the small details of how a separation will work, in a way that a formal legal process never could, even to the extent of discussing nurseries, bedtimes, dropping off plans, holidays and extended families. Mediators can also work with parents on how to break the news of separation or divorce to their children.

Research suggests that 12 years after separation, couples who have gone through the mediation process are still reaping the rewards, with both parents more likely to have a good relationship with their children, and an ability to communicate as parents.

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 genuine life-long communication between former partners. 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 its consequences.  As one of my former clients once put it: “If it hadn't been for mediation, we’d still be fighting now.” 

Frances Place is a qualified solicitor who works as a mediator at Progressive Mediation.  

Surviving the split: who gets what? Separation tips for the newly single

Whether it was festive excess of novelty liqueurs, mystery texts on New Year's Eve, or even personality-challenged in-laws, January is established as divorce month. Immediately post-Christmas is the most likely time for a couple to split in the UK.

If you're thinking about divorce, or you've even started on the packing, you'll need help. While it's a huge step emotionally, and can be a terribly hard time, the last thing you need is more stress and confusion about the practicalities.

One of the most common questions family lawyers face is: who gets what? If only there was an easy answer - every divorce is negotiated on the assets and circumstances of the husband and wife involved. Even with court involvement, settlements are made by and for individuals, every time.

But the law gives you basic principles that can help you see your position with the house, the business, the children and the pension. And a good lawyer will save you money. See where you stand here with our advice:

1. At the outset, don't risk spending the marital assets on legal bills. Talking through your emotions is free with friends and family - any good lawyer will be the first to point out that s/he will have to charge you. Use your solicitor as a lawyer, not a therapist.
2. Work out how much your marriage is worth - value your property, pensions and business. Easier said than done; you might need, for instance, a forensic accountant as an expert to cost the business and its future, which can cost 10-15k. But accurate valuation is vital to a fair split.
3. In divorce, children come first. That means their financial support and a home have the first call on the money, usually until they're 18 or 21.
4. Your and your ex's needs come second. 'Needs' here means essentials, such as a roof over your head.
5. Once the children and essentials have been secured, money and assets built up during the marriage will be split evenly.
6. Exceptions apply - you might be able to keep an inheritance or a trust income, but, in the lawyer's universal dark phrase "it depends".
7. Maintenance is called "ancillary relief". You can both ask for it, but getting it will depend on, among other factors, who has the children and your previous standard of living.
8. Pensions count as part of the assets - while sometimes the value is offset against the family home for the person who keeps that, these guides explain two other common ways to split cash for your retirement: the PAS' Pension Earmarking and Pension Sharing.
9. Family-owned businesses are usually valued either on earnings (if they make money), assets or dividends. Either way an ex can find it hard to accept that the business is not worth as much as they thought, which in the current climate is sadly more than likely. In Scotland, however, the business is valued only as it was during the marriage.
10. How the law decides: while settlements are individual, these factors must be taken into account: your ages; duration of the marriage (12 years counts as "long"); your health; both your earning capacities (including who has the economic burden of childcare); standard of living you built up; your contribution to the marriage; and how much money you would have to lose to leave it.

What happens if you die without leaving a will?

“I’m not afraid of death – I just don’t want to be there when it happens.” It has to be one of Woody Allen’s best one-liners. Death is something many of us prefer not to think about – or plan for. According to some estimates, as many as 35% of UK adults aged over 55 do not have a legally valid will. Those in younger age groups are much less inclined to have one (as many as 80% of 18-34 year olds).

More than a tenth of those who do not have a will believe their estate (AKA their property) will automatically go to the people they want it to go to were they to ‘pop their clogs’. About a quarter plan to write a will when they get older, while some people are put off by associated cost and more than a tenth admit to never having considered writing a will.

If you ‘kick the bucket’ without leaving a legally valid will you are described as dying “intestate” and your estate must be shared out according to the rules of intestacy. If your will isn’t legal, the rules of intestacy determine how your estate will be shared out – regardless of any wishes you might have expressed.

Under the rules of intestacy, spouses or civil partners inherit only if they are married or in a civil partnership at the time of death. Partners who are informally separated from the deceased can still inherit under intestacy rules.

Many famous people are reported to have died intestate. Legal battles over the estate of legendary guitarist Jimi Hendrix are reported to have lasted 30 years. Other famous musicians/singers include Michael Jackson, Bob Marley, Kurt Cobain, Sonny Bono and Barry White. Former US president Abraham Lincoln (who was assassinated in 1865, and, ironically, a lawyer by profession) died intestate, as reportedly did Pablo Picasso, eccentric billionaire Howard Hughes, Diana, Princess of Wales, Stieg Larsson (author of The Girl with the Dragon Tattoo) and TV presenter Jill Dando.

Whether rich or not, famous or not, few things are more hurtful or undignified as the spectacle of relatives squabbling over an estate. And as viewers of BBC TV fly-on-the-wall series Heir Hunters will know, if there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown, which is known as bona vacantia.

Interestingly, “Under constitutional law dating back to medieval times”, in the past six years HRH The Prince of Wales (AKA the Duke of Cornwall) is reported to have received £1m from the estates of those who have died without wills in Cornwall (totalling £552,000 in 2012 alone). For the past 40 years, Prince Charles has opted to give the money to charity.

No matter how old or young you are, the message is clear. If you want to avoid creating any more heartache, hassle or expense for those you leave behind and ensure that your estate is distributed in accordance with your wishes, you must have an explicit, thorough, legally valid will drawn up. Seeking tailored legal advice is wise, especially where circumstances are more complicated than usual (eg if you have step children or own multiple properties). It’s probably a good idea to seek inheritance tax advice, too.

Mark Williams is editor of the Start Up Donut.

Further reading

• Making a will
• Making a will: 27 FAQs
• Dying without making a will

The internet and the executor

The days when secret passwords were the staple of children’s books and not a part of everyday life are long past. Increasingly, the issue of what to do about Internet passwords and, to a lesser extent, internet property, is proving problematic for executors. 

Some people might be tempted to list their internet passwords in their will, so that their executors can readily access their web-based assets. Leaving aside the issue that passwords may later be changed, caution should be used here, as the will is a public document when probate has been granted. It is probably better to keep a list of passwords to internet assets in a secure place and to make sure the location is known to your executor.

If a person who dies has bank accounts accessible via the web, these are not ‘virtual assets’ but ordinary assets of the estate.

Sentimental assets, such as videos and social networking posts, are not normally of value unless created by a person with a paying audience. They would not normally be valued as part of an estate, but the deceased’s family may well want to retain them.

Assets paid for but held online, or those that are licensed as opposed to owned (collections of music are likely to fall into this category), are normally of little or no value. Assets of value are likely to be those that are the copyright of the deceased person. Many businesses use ‘the cloud’ for data processing and storage, so access may be of critical importance for continuation of the business.

It is sensible to think about the sort of data you have and how it is accessed and then to make sure that your executor will have a list of:

• data held that has value, and what it is used for;
• the devices or web locations that hold the data; and
• the means of access to the data.

The internet will create challenges for many executors. Giving advance consideration to what those might be for the executor of your estate, and taking the appropriate steps, will make their job a lot easier.

This blog was provided by Paul Lowery of BP Collins

Make sure your loved ones inherit your estate - not your problems

The heartbreak of losing a loved one is always hard. Dealing with the immediate aftermath is a blur of practicalities mixed with emotion and, once the funeral is over, then begins the uphill struggle of dealing with the administration of the estate.

Where a prudent approach and good planning has been involved, this usually means going through a will with a solicitor and dividing up the goods and chattels as instructed by the deceased. Imagine how distressing it can be then, to discover that a will is going to be contested – something that more and more families find themselves having to deal with for a variety of reasons.

The family of the late TV personality Sir Jimmy Savile face just such an ordeal after a woman alleging to be his illegitimate daughter lodged a claim against his £7.8m estate, the vast majority of which he left to charity. They are now awaiting the outcome of a DNA test the claimant hopes will prove her case. The claim was made under the Inheritance (Provision for Family and Dependants) Act 1975, which says that everyone has an obligation to look after their spouse, children and other dependants.

In another court hearing, a couple’s adopted son went all the way to the Court of Appeal after missing out on an inheritance because his parents, for whom he had been sole carer, inadvertently signed each other’s wills instead of their own due to a simple administrative error. The mistake, which was only discovered after they died, meant that as far as the law was concerned, the couple had died intestate, enabling their two biological sons, to whom they were not close, to inherit the estate.

These examples show how much inheritance matters and underline the importance of accuracy and clarity when writing a will. It doesn’t matter if you belong to an extremely wealthy family or are from a more modest background, when loved ones miss out on assets they feel entitled to because of an honest mistake or family politics, it can be devastating.

Contentious probate is one of the fastest-growing areas of litigation, with more and more people willing to take legal action to try and recover money they believe is theirs. We see increasing numbers of cases where individuals and families are at war because the right level of advice wasn’t sought in the first place and details are being misinterpreted or left open to challenge from disappointed beneficiaries.

The tragedy is that it’s all too easy for legal fees to outweigh the value of an estate, and the heartache and time taken make it extremely hard for the family at the centre of the dispute, who simply want to be able to move on with their lives as best they can.

Making your will last a lifetime will require regular reviews to ensure it reflects your current situation and allows those you want to benefit to be safely and securely looked after. It’s not something you – or your family – can afford to get wrong.

Craig Williams is a partner in the litigation and dispute resolution team at Buckinghamshire law firm BP Collins LLP.

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.

Frances Place, Partner at Progressive Mediation

My thoughts on the Family Justice Review

This week, traditionally the busiest time for family lawyers dealing with post-Christmas-stress divorce enquiries, here are Colin Mitchell's reflections on the implications of December's Family Justice Review.

So, the long-awaited Family Justice Review, by the former senior civil servant David Norgrove, has now been released. One particular issue which made the headlines is that children should not automatically have the legal right to split their time equally between the mother and the father after their parents have separated (as Norgrove had suggested in his interim report might be one of his recommendations). Some fathers’ action groups have been disappointed with this, as they had hoped to be granted the legal guarantee that their children would have to spend an equal amount of time with them, rather than the children possibly spending the majority of time with their mother.

However, although the fathers’ action groups are disappointed by this part of the Review, the underlying principle of Children Law remains the same; the welfare of a child remains the paramount consideration.

Therefore, what the Family Justice Review has done is recognised that every case is different and that a “one rule fits all” approach is not appropriate in family cases. Current Family Law must still be considered in light of a family’s unique circumstances. When a judge has to make a decision, the law still allows him or her to tailor that decision to fit the unique needs of the children concerned.  In some cases, this may result in children spending more time with their mother, but in other cases the time the children spend with their parents can be split more equally. Sometimes, the children spend the majority of time with their father.

However, it’s almost always better that a family problem is resolved outside of court, perhaps using Mediation or the Collaborative Family Law process. These processes not only provide a tailored solution but also provide the opportunity for non-legal professionals to become involved to help the parents focus on the children, not just themselves.

What any decent family law specialist needs to provide is bespoke advice on how exactly the law can apply to particular circumstances, by recognising that every case is
different, whilst also working with experienced and skilled non-legal partners.

Blog taken from Poole Family Law's blog, written by Colin Mitchell, a Collaborative Family Law/Divorce Solicitor working for Coles Miller Solicitors LLP

Where there’s a will there’s a row

As the Legal Ombudsman raises the alarm about online will-writers, Georgina Harris explains why attractively cheap deals could turn ugly in the future

A new report by the nation’s law watchdog, the Legal Ombudsman, slams the increasing number of online ‘legal services’ firms that pop up only to vanish with customers’ money – or leave clients with worthless paperwork for their most important life decisions.

The report, which, reveals the public’s complaints about the legal profession that the Ombudsman has received since it opened in 2010, highlights the serious trouble often faced by those buying legal services online. Unlike lawyers, who work to professional standards, online will-writing firms don’t need a single qualification to offer their services. Many people, attracted by low prices, click on a bargain, convincingly legal-looking logo, behind which hides an entirely unqualified and unregulated firm.

The Ombudsman cites the case of Mr and Mrs T, who sent a cheque for over £1,500 to a will-writer they found online. Not only is this double what a decent lawyer charges for a family will, when the T’s precious paperwork arrived, they saw “a standard document with a few minor personal details inserted”. When the Ts complained that “they could have done [it] themselves by getting a pack from a stationers” (WH Smith, £10), they received no response. As an unregulated firm, the Ombudsman can’t help. The Ts are left with no valid will, and, in any case, a lot less money for their old age. 
 
“Phoenix” firms, which the Ombudsman says have increased in number, “close and re-open as different structures, leaving the fall out for their individual customers”. As the Ombudsman points out, regardless of whether it decides a customer has been cheated – through the non-appearance of a will, for instance, or for a badly drafted one – if the firm has disappeared, so does the customers’ money.

The Ombudsman says, with admirable reservation, that buying online “comes with its own set of specific issues for consumers, not least when something goes wrong.”
Ironically, this report comes at a time when old-age planning and will-making are ever more essential to all our lives. Houses are worth more, inheritance tax affects ordinary people as well as the rich, and the eye-watering costs of care need careful thought – not to mention ensuring proper protection and care for those in later life. It might come as a surprise to realise that in the UK none of this can be done informally – set legal wording is required for everything from gifting trinkets in your will to naming the relations who will take care of you and/or your money in case of, say, medical emergency. 

Savvy people congratulate themselves on preparing for their dotage well in advance – but as the Ombudsman points out: “the nature of legal services is that, usually, the flaw in the service is not apparent until the end – or many years later.” Is an ‘online discount’ worth ending up with an invalid Power of Attorney when you are bedbound and unable to pay medical bills, or your children finding out a typing error took their shares in the family business? While the Ombudsman and the Law Commission work out how to deal with unscrupulous or incomptetent firms, a lawyer remains the only safe bet. 

• Read more about wills in our factsheet Dying without making a will and set of FAQs Making a will: 27 FAQs

Georgina Harris, Law Donut editor