Monthly Archives: July 2014

Financial Settlements on Family Breakdown – How to Get it Done.

Mediators and lawyers have their own role to play in helping you to reach decisions following on from your separation.  Most of the hard work is done by you both during the mediation sessions.  The two of you will discuss the issues that need to be resolved, with the help of the mediator.  The mediator is there to help you to communicate in a constructive way while your respective lawyers will help you individually by advising you about the proposals.   They can then translate the settlement proposals into a legally binding agreement or submit it to the court for the court’s approval.

An out of court settlement is something you often hear about.  It is a settlement that is often reached within the mediation process.  It can then be endorsed and approved by the court to make it legally binding.

two mannequins fighting over 100 dollars

For a financial settlement to be binding it is important that both of you disclose to each other your respective financial positions.   This would be the same whether your settlement was reached through mediation, through solicitors or through court.  You cannot come to an agreement if you don’t know what the assets and incomes are.  This process is called full financial disclosure.  You are then able to have discussions and negotiate a settlement   Even in court most settlements are reached through discussion and negotiation rather than the Judge making your decisions for you.  In mediation, you can go straight to those discussions after the financial disclosure stage, without waiting for the court to give you appointments and paying for costly court fees, and solicitors’ and barristers’ costs.

Just because you and your ex can’t communicate doesn’t mean that you have to go to court.  Mediation can help you look at how your relationship can be improved to enable you to resolve your issues, particularly communication.  You can become more co-operative and make your own decisions together.  The benefit of mediation is that it is the two of you who will be making the decisions about you and your children, rather than having a Judge decide what is best for your future.

Do you think that you will be better able to communicate if you have solicitors writing letters between you?  No, I suspect not too.  Often what you said and what you meant can get misunderstood or blurred by using a third party.  The advantage of mediation is that you are both putting forward your views and the other can listen and respond at the time, not 2 or 3 weeks later.  The mediator can help by translating and clarifying if necessary.  Then, in a constructive and problem-solving way you talk through the options and work out what is best for your separated family. Then you do it, job done!

Whatever.  The importance of ‘Whatever’ in History.  

The countless aeons of history that have gone before us are full of fighting and killing, full of domination and oppression, full of taking over and wiping out, conversion, subjection and vanquishing, the growth and decline of empires and peoples. The strong overcome; weakness is obliterated and suffers.

Does extremism make people violent or do psychologically disturbed people get attracted to the violence, power, fear and atrocities possible in the life devoted to the evangelism of the mad, bad and truly horrific Whatever? Does war and violent evangelism offer an apparently pure excuse for the anger and alienation of some young people, waiting for their lives to start? I say “Whatever” because historically the motive for aggression can be anything, that’s the point really.  Some wars are simply about land and resources – we want ‘your’ this, that or the other and we will kill as many of ‘you’ as we have to in order to get it. Oh, and the rest of ‘you’ can be our slaves.

Then there are the crusades – our religion or philosophy, culture or Whatever is right and yours is wrong, so we will kill as many of you as we have to, to convert you to our ways plus we will destroy your homes and cities and flatten your country until there is no one left to oppose us. Then we will have won and you will believe what we believe or you’ll be annihilated and that will be the victory of our Whatever.  In the Middle Ages the English kings led the crusades to the East to convert the people they broadly called the infidel to Christianity.  It seems mad today doesn’t it? Now we have the descendants of those peoples waging jihad against their peoples and neighbours to establish their caliphate, because they think if they kill and destroy enough, they will be able to take over and rule, convert and build an empire, like Hitler or Stalin or any other mad megalomaniac from the countless centuries that have gone before trying to impose their Whatever by force.

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Of course, each thinks that their Whatever is different, theirs is the Real Whatever, but for everyone else coping with the consequences of the onslaught, it’s the onslaught that matters, that gets noticed, the Whatever is the price of peace. So here we are again, there always seems to be somewhere in the world where someone is trying to convert to Whatever by killing. It used be to Ireland. For hundreds of years there was fighting and killing on the face of it between two types of Christians, the Catholics and the Protestants. Any of them knew what they were doing was wholly contrary to their Christian beliefs, to the “in my Father’s house there are many mansions” of the Bible they were purporting to defend. Everyone could see it wasn’t really about religion, it was wholly anti-religious. So is the killing, maiming and destruction that occurs in the name of religion going on today, whether it is between Jews and Arabs, different types of Muslims or different types of anyone else. The text is always “We are right you are wrong, mend ‘your’ ways to our ways, or die” but the subtext is always that of fighting, killing and destruction.

The apparent motive for the aggression must be on the face of it a pure and totemic idea, that people can be blindly and suicidally committed to. However, the apparent motive can be almost anything, “Whatever.”  The main requirement is that death in its cause will create martyrs, so the young can be recruited and turned to its service and kill and die and yet live forever in heaven. Interestingly, those dying in the Christian crusades were martyrs, as are those dying today in the jihads. Everything changes, but nothing changes, the death and destruction are the same, only the names of the protagonists are different.  Whatever.

What is it about mankind that attracts large numbers of people to war, fighting and death? The defenders are fighting for their lives, for peace and survival. The attackers are usually fighting to impose their Whatever on others. Why? When will we ever learn? We were getting there. There is little appetite in the Western world for war, we have seen its terrors and want none of it. So it is all the more frightening that in some parts of the world now education is vilified and girls cannot be educated, women live like prisoners in their homes, while boys and men are indoctrinated in “Whatever” and prepared for modern crusades. Ignorance is our greatest enemy; ignorance and starvation and the desperate fight for survival that leads peoples out of their barren starved, parched lands to seek water and life. What will we do about them?

The problems we face as humans are so massive and all encompassing; we surely have to find new ways to resolve our differences and those problems. Yet how can the mediation of peaceful solutions wage war on terror, death and destruction? We have a race on our hands to answer that question, because it is an idea whose time has come and we have to make it happen fast. Mankind must stop fighting and start talking about how to solve the problems of the world together. Unless we start to prioritise the mediation of solutions and agreements that are life affirming, tolerant and create a peaceful world we are all dead. That is my Whatever.

The Unreported Flaws Behind Penelope Leach’s ‘Toxic Truth’

Parenting guru Penelope Leach’s recent claim that after parents split, no child under four can spend even one night away from their primary carer – usually their mother without the risk of lasting damage – has caused a storm of controversy in family law. Her latest book, Family Breakdown, cites “undisputed evidence” that overnight separation from mum can adversely affect a child’s brain development.

These trenchant certainties threaten to have an enormous impact on parents and judges who are often confused about what is best after couples split.

Leach’s influence is even more worrying because science shows her “undisputed evidence” may well be wrong. She relies on a study from Australia (McIntosh el al 2010) Responding to this study, the American Psychological Association (APA) has published a paper, Social Science and Parenting Plans for Young Children: A Consensus Report,  endorsed by 110 of the world’s leading child mental health experts from 15 countries, repudiating its conclusions. The lead author of the Australian study has subsequently dropped the conclusions that Leach relies upon, stating: “Cautions against overnight care during the first three years are not supported.” Sadly for so many children and their parents, Leach does not include this addendum in her book.

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We cannot afford for such important questions about child welfare to become an ideological battleground. Parents, mediators, lawyers  – and the judiciary – need clear guidance grounded in sound evidence. That’s why the APA review is so valuable, since it provides an overview of 45 years of settled and accepted research.

“We found no support for the idea that children under four (some say under six) need to spend nearly all their time living with only one parent, when their other parent is also loving and attentive,” the lead author Professor Richard Warshak said. “Warnings against infants and toddlers spending overnight time with each parent are inconsistent with what we know about the development of strong, positive parent-child relationships. Babies and toddlers need parents who respond consistently, affectionately and sensitively to their needs. They do not need, and most do not have, one parent’s full-time, round-the-clock presence.”

At Focus we can, in many cases if you and your children want, talk to your children in confidence about their thoughts, wishes and feelings.  It won’t be easy for either of you, but at the end of it we hope that you will have reached an agreement that you both feel works for you and most importantly your children.

So much for justice, we’ve learned to live with an unfair dysfunctional system and find weird ways around the worst problems it causes. Just don’t expect it to make sense!

Many Divorces are based on lies, but you can’t defend them. 

Countless times it turns out in mediation that two people, who experienced the same event, interpreted it totally differently. Each understood what was happening in their own way, then afterwards, thought about it and overlaid it with different layers of meaning from their reflections about what happened. The most common issue in the early stages of family breakdown is whose fault it was that the marriage broke down. One may say it was the affair, but the other may say it was the constant rows, their poor relationship that pre-dated the affair. It will often feel desperately important to people to feel their conscience is clear and the break up wasn’t their fault. Many people find it impossible to believe that if it’s not your fault you don’t get a better settlement. Of course, they may think if they make the other person feel bad enough, guilt may help them to a greater share of the money. That is usually not the case.

Whilst defended divorces are rare these days they do still happen. The person who defends usually does so because they feel the divorce petition is a lie. They usually agree the marriage is over and then they usually cross petition, as they want the divorce to be granted on the basis the other person was to blame, and so their cross petition sets out all the reasons their spouse has actually caused the marriage to end.

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In a divorce based on fault not separation, the petition has to be based on adultery or unreasonable behaviour and in either case it has to be the cause of the breakdown of the marriage in the sense of make that particular petitioner feel they can’t live with that respondent. So it is very personal to them and doesn’t have to reach a level of proof such that a reasonable person would find it intolerable to live with the petitioner. If the petitioner has forgiven the behaviour or adultery, then it cannot be used in the petition, so it’s no good dragging up ancient history. Forgiven has a specific meaning and if you have lived with the respondent for a period or periods together totalling six months or more since you found out about the behaviour or adultery, then you cannot rely on it in your divorce petition. This can cause a lot of injustice. So a spouse who tried hard to forgive someone for committing adultery and struggled on in the marriage but later called it a day, may not be able to rely on that adultery to divorce their spouse, unless it is continuing or continued to within six months of the petition.  It doesn’t matter that it was actually the reason for the break-down. To add insult to injury, if after separation the injured party then has an affair, most people would say that didn’t cause the marriage break-down, but it is still legally adultery and what’s more it may well be the only adultery that can be used in the petition, as it hasn’t been legally forgiven!  To make it even worse, if you are the respondent you can find yourself facing an order you pay the divorce costs! So plenty of room for unfairness and dispute.

Where petitions based on adultery are concerned, you only need a sentence saying the respondent has committed adultery with someone the respondent doesn’t name, they find it intolerable to live with the respondent and seek a divorce. You can no longer muck rake by dragging in the name of the person who you think they committed adultery with, so no more co-respondents.

The other fault-based petition is founded on unreasonable behaviour and more detail has to be given to justify the divorce. There is an old rule of thumb of half a side of A4 and a few paragraphs. So typically a few lines of general outline, followed by the first, the worst and the last, then a concluding paragraph saying the effect the unreasonable behaviour has had on the respondent, for example, made them depressed, miserable, sleepless, feel deeply unhappy and unloved – and importantly that the marriage is over and they seek to end it with a divorce.

In those rare cases when divorces are defended, the court does everything in its power to stop it. We at Focus Mediation have over our fifteen years and approaching ten thousand cases, mediated a number of defended divorces with cross petitions. They usually end in the same way. Either and usually both the petition and cross petition is amended to remove the most offensive allegations, then the divorce proceeds on the basis of both petition and cross petition, with usually no order for costs. Normally the costs by then will be £3,000 – £10,000 between the parties, money completely down the drain and each will usually pay their own costs. Many hours will be spent arguing over the detail of the reasons for the divorce, because it feels so important to that couple, but not actually because it is important in any way that matters.

Sometimes the respondent may feel that the allegations touch on and criticise their handling of the children and might cause troubles over them having the children if not challenged. There is even a way around this. You can say the divorce particulars are not agreed, but you’ll allow the divorce to proceed on the basis that the fact you have not defended it does not mean you accept the petition and the fact it wasn’t defended cannot be relied on as evidence it was true in the context of any other proceedings. Job done, you can produce that letter at court if you need to in those other proceedings if such ever occur. Then it’s likely the court would make you plead that behaviour again and prove it in those other proceedings.

Judges hate defended divorces with a passion and they do all they can to stop them. If you defend you can expect a drubbing at court, even though you may feel outraged at what is happening to you, the judge will be just as outraged you could defend a divorce in their court, so not much sympathy there.

So in conclusion, divorce petitions must follow technical rules and cannot just be about what you feel is the reason for the divorce. Often they will be about something different, but it qualifies as the legal grounds for the divorce, which may not be the real reason your marriage ended at all. This may make you mad and upset, but as we all know the Law’s an ass, so don’t expect the judge to agree with you or think you’ll get “Justice” because you won’t. Sorry, but don’t be silly! You can’t  go to court for justice on your divorce, who cares whose fault it is? Only you.  The judge will not let you have your day in court, not if they can help it.

The answer is to change the Law to stop all this, they were going to do that many moons ago, but dropped it. The tabloids were out-raged that people would just get divorced for no reason; the government had to drop the Bill. So here we are still with antiquated divorce laws that make a sad situation worse and make people wash their dirty linen in public, so to speak. Mad, bad and stupid divorce laws do nothing to ease the path of broken hearts to a civilised divorce. They encourage arguments then deny the right of reply and the use of the courts to establish truth. So many divorces are based on lies and lawyers can do nothing about it, save advise people to bite the bullet and let it go – along with the marriage.
Mediation at least helps you end it with dignity and kindness.