The Courts view on conduct of the parties for the purpose of Financial Proceedings

March 29, 2017By BPS Family LawBlog

Generally speaking, a parties’ conduct is not usually taken into account when the Court’s are considering how the matrimonial assets should be distributed between the parties.

The Courts are aware of the fact that matrimonial finance proceedings can be extremely stressful for both parties. There are worries for both parties as to where they will now live, how they will be rehoused, and whether there will be enough money awarded to them for them to be able to begin again. The Courts therefore expect an ‘ordinary run of fighting and quarrelling which occurs in an unhappy marriage’ and therefore they do not take this conduct into account as this would undermine any contribution that a party has made towards the marriage.

However, there have been occasions within certain matrimonial finance cases where the Court has deemed it ‘inequitable to disregard’ a parties behavior, and thus the offending party has received less than they were entitled to than if the conduct had not been carried out. The conduct in question need not have taken place during the marriage.

In S v S 1982 12 Fam Law 14 The Husband has committed incestuous offence with the parties daughters. As his behavior contributed towards the breakdown of the marriage, the Former Matrimonial Home was transferred into the Wife’s sole name.

In another case, H v H (Financial Relief: Attempted Murder as conduct) 2005, a Husband had subjected the Wife to a horrifying ordeal whereby he attempted to kill her. This attack was witnessed by the parties two children. Given the fact that the Husband was going to serve time in prison and therefore be unable to contribute financially whilst incarcerated, and that Wife’s earning capacity was completely destroyed as a result of her suffering both mentally and physically as a result of the attack, the Court thought it reasonable to award the wife three times more of the matrimonial assets.

In Al Khahib v Masry 2002 The Husband abducted the children to Saudi Arabia and refused to reveal the true value of his assets. The Court deemed his behavior in relation to the children to amount to conduct which was ‘inequitable to disregard’.

In S v S (Non Matrimonial Property: Conduct) 2006 the court did not award a settlement in favour of the Wife who had been assaulted by Husband. The Courts were reluctant to offer any guidance as to when it is deemed appropriate to reduce a parties award. Conduct of the parties is merely one aspect of Section 25 principles when determining how matrimonial assets should be divided, and for conduct to be taken into account, it appears from the above case law that it must be of severe magnitude in order for the Courts to intervene. Sir George Baker P suggested a test of ‘the gasp factor’ in W v W 1976.

If you need advice in relation to matrimonial finance proceedings, please contact us.

Lasting Power of Attorney – What is it and how is it obtained?

March 27, 2017By BPS Family Law123, Blog, Case Studies

A lasting power of attorney ( LPA ) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

This guidance applies to the donor instructing an attorney in their professional or business capacity rather than a family member or friend.

There are a number of reasons why you may need to appoint someone to make decisions on your behalf. You may need to make long term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.

Individual or trust corporation appointment?

We will ensure the donor understands whether they are choosing to appoint an individual or a trust corporation. If an individual, then the professional’s responsibility will still apply even if the professional leave their post or profession until they disclaim their appointment.

Appointments made jointly or jointly and severally

You must decide whether to appoint the professional jointly, or jointly and severally. An agreement must be made with any co-attorneys so that the donor’s affairs are managed properly. This will be dealt with in advanced by the our firm.

 Certificate 

A certificate will confirms when the donor creates the LPA, that donor fully understands what they are doing and have not been coerced into making the LPA.

 

Acting in the donor’s best interests

Our firm will ensure under the Mental Capacity Act 2005 that any actions taken or decisions made on behalf of the donor lacking mental capacity is in that person’s best interest.

The firm will ensure that they take into account the donors past and present wishes and feelings, and any beliefs or values. A record of any discussions will be held on the donor’s behalf so that the donor is reassured that the firm will act as they want if the donor does not have capacity. If the donor loses capacity and is no longer able to express their preferences it will be crucial for the professional to talk to relatives and carers to ensure there wishes and feelings are met.

After the LPA is created

Once the donor is created the donor must discuss what they would like to happen once they have created the LPA. It is recommended by the Public Guardian that the donor must register the LPA as soon as it has been created while they still have capacity.

If you’d like to find out more about the lasting power or attorney and how to set one up then you can get in touch with Caroline at [email protected] or by telephone 01619261430