Tag Archives: Divorce

The Huge Cost of Court Proceedings

The chairman of the Laura Ashley  Khoo Kay Peng has been ordered by the High Court this February to make an offer to Pauline Chai his estranged wife to end legal battle that has  cost him £6.1million in legal costs. Mr Justice Bodey gave his lawyers a 21 day ultimatum.

The case which at one stage was also running  in Malaysia, is one of the most expensive divorce cases ever to come before the UK courts.

Costs began to increase dramatically when Khoo fought and lost a bid to have the divorce decided in the Malaysian courts. Chai, who was Miss Malaysia 1969, won the argument that London was the appropriate location.

The Judge ordered “open offers of settlement” to be made by both sides, and said at a case management hearing: “I am striving to exercise some control over this titanic case. Otherwise the case will inevitably proceed on its expensive way to the detriment of the parties and the court’s resources. The actual resolution of the finances of this couple, who have more money between them than they could spend in their lifetimes, has unfortunately taken a second seat. The legal costs bill is going on for £6m at a stage where the case has barely reached the first fence.”

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Chai, 69, alleged that Koo,77, was worth more than £440 million and earned £5.4 million a year. They have five grown up children and she maintains that she is entitled to half of his fortune. He disputes her claim and maintains that his assets are worth £66 million.

The couple married in December 1970 and separated on Valentine’s Day 2013. A decree nisi was pronounced in January this year and is due to be made absolute later this month.

They bought their first property in England – Wentworth Park – in 1995, and then five years later acquired the 1,000-acre Rossway Park estate at Berkhamstead. Khoo has indirect interests in a variety of businesses through two holding companies in Malaysia as well as substantial holdings in Laura Ashley and Corus Hotels.

Although the figures and costs are extreme many couples who navigate financial proceedings within divorce in this country will be all too familiar with the huge cost of court proceedings to them. If a case reaches or nears a final hearing both parties can incur upwards of tens of thousands in legal costs and certainly many thousands for the first few hearings.

Here at Focus we offer mediation as an alternative route to resolve these disputes by allowing a separating couple to discuss various options with a trained mediator thus avoiding lengthy court battles and the stress that this entails. Throughout the process they both work with the mediator to help them reach an agreement that they are both comfortable with. Mediation gives the couple a degree of control over the speed and cost and is quicker and less expensive than court proceedings. Some couples prefer to have their lawyers with them at mediation. This can be arranged with a dual trained Focus mediator able to use the One Day civil model of mediation, which results in a binding agreement being drawn up by the lawyers on the day.

For more information please click on our website.

Tara Deegan

Courts are deliberately misled by a quarter of divorce petitions

The introduction of a no-fault divorce petition is the subject of a 10 minute motion which was debated in the Commons on the 13th October.

The law should not require couples to “throw mud at each other” and instead should allow for divorce without blame. A simple signed declaration by each party to a divorce that the marriage had broken down irretrievably should be sufficient.

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Research conducted by YouGov in June 2015 found that 52% of divorce petitions were fault based and that 27% of divorcing couples who asserted blame in their petition admitted the allegation was not true.

Support for no fault divorce has also come from Resolution. Their chairman has said “fault based petitions are outdated, unfair and in need of urgent reform. Its not about making divorce easier – its about making it easier for people to move on. The current system is causing couples to make false allegations to have their divorce finalised in a reasonable time. The charade needs to be ended”.

The removal of blame from the divorce process would bring England and Wales into line with other jurisdictions including the US, Australia and Spain.

The Silver Splitters – Divorce for the over 50s on the rise…

The Office of National Statistics figures released in July 2015 show that the greatest rise in the percentage of people getting divorced in 2014 are couples aged 50 to 64.

This trend in older people divorcing is not new.

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By 2013 the number of over 60s divorcing had reportedly increased by over a third in the last decade. Dramatic changes in life expectancy have led many couples to reconsider whether they really want to grow old together. Today’s over 50s are fit and active and no longer feel that there is such a stigma attached to divorce. Marriages are more likely to end in divorce and less likely to end in the death of one spouse than they were in 1991. And as you head towards retirement it can trigger a reappraisal of how you want to spend your later years.

Some suggest that the older generation have become more aware that they can split from their current partners after the children leave, and still meet new partners. They can go on to lead more fulfilling lives, rather than staying in less than satisfactory relationships.

Others suggest that, once the children leave, couples discover that they have less in common than they thought they did.

Plus, women are often more financially independent than before and may feel more confident to make the break.

In general divorce can be simpler and cheaper when child maintenance is no longer in the picture.

Conversely, “Silver Splitters” may have more to argue over, where they have benefitted from rising house prices and where they may have generated a significant amount of equity in the house over a number of years and have at least one hefty pension to consider.

Changes in the law which allow pension funds to be shared may also have had an impact on the over 50s divorce figures. With the latest developments following on from this year’s budget, the over 55s now have some freedom to cash in their pension pots; no surprise that they are taking hold of this new found freedom to make the break.

However any split or equalization has to be handled with care because comparing different types of pensions with differing contributions and different rights is like comparing apples with pears.

At Focus Mediation our mediators who work with the financial aspects of divorce are all lawyer mediators. Our lead mediator and Managing Director, Mary Banham-Hall, has an advanced qualification in pensions and trains the team to mediate this minefield to best effect.

By coming to mediation, we can help you to work through where you are and where you want to get to as quickly and cost-effectively as possible, focusing on your priorities and what you need to move on and live separately.

Control, Leverage and Letting Go of Relationships

As mediator I see hundreds of couples at the point where they are negotiating their arrangements for separation and divorce. It is fascinating. Many of them say they ‘Just want what is fair’ and that ‘They just want to sort it all out as quickly as possible’. They may well then embark on behaviour and an approach to negotiations that will ensure exactly the opposite happens, it does not get sorted quickly and what they want is what the want and it may not be fair. They bring their couple boundaries into mediation where they have to be managed by me as the mediator to achieve a fair negotiating balance between the parties to mediation. So the so-called controller will have to let go of his or her influence over their ex partner and they will find this very hard. As mediation progresses it often becomes clear that the couple will never agree what is fair because this is an opinion seen through the lens of their self interest. It is possible to argue endlessly about fairness and people often feel very strongly about certain things, even when in law these things may make no difference at all. In most cases the main question is ‘How can these assets provide for you both and any children? What is practical?’ On divorce there is no forensic accounting and handing back of contributions made 20 years ago and the partner who has worked in the home childrearing and housekeeping is treated equally to the partner who has earned the income on which the family has lived.

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Controllers may seek to use their historic influence in negotiating their settlement in mediation. An effective mediator helps the couple to re-define their couple boundaries, especially the ones relating to influence and control and re-balance the two people on a consciously more equal footing, something both necessary and extremely uncomfortable. An example may help:

Towards the end of the mediation when the issues have almost been resolved, one party may hesitate, and delay booking the final session. They may raise additional issues and appear to start new or old arguments, running the risk the mediation will collapse and court will be the only option, this holding the couple stuck in their existing boundaries for longer with historic levels of control and influence. What are they afraid of? They may be unconsciously afraid of losing control or influence of their nearly ex partner.

My heart always sinks if I hear someone worrying about ‘Leverage’. That is not a good word, it imports a world of meaning associated with the exploitation of a dominant negotiating position to exercise non consensual control. The controller will fear loss of control mightily and will seek to retain it. They may well also complain bitterly about lack of communication with the controlled or leveraged person. They will not understand the connection between the leverage they are accustomed to exercising and their poor communication with their victim. As I said to one divorcing man recently, as he twitched nervously about his loss of financial leverage on settling his finances with his ex wife, ‘Have you ever thought if you didn’t have any leverage over her, your relationship with her might improve and with it your ability to communicate over your children?’ He looked at me with real fear and lack of comprehension, so I held his eyes and said ‘Just think about it!’

Controllers – Do They Come in Pairs?

Often in mediation we see the couple separately for their first meetings. This gives people an opportunity to be very frank and open about their situation. Often one will say “S/he’s a controller, and I’m unsure I can cope with mediation!” Then the other person comes and says the same. What might be happening? Each clearly feels they’re not getting their way enough. They have come to resent and oppose the control or influence involved in being part of a couple. Whether this is reasonable or unreasonable as a matter of opinion.

So for example, if Harry went out alone to the pub every night, their partner might object, then Harry might complain of being controlled, but who would be at fault?

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What if John complained Sally spent too much money on shoes and the family had a huge debts and Sally had 1000 pairs of shoes? Sally might say John was controlling, if he tried to stop Sally buying shoes, but would his actions be inappropriate and who would be at fault?

These exchanges are the overt text, the surface conversation. What is really going on is what I call the subtext and it is the subtext that is so interesting. It is a matter of opinion whether there are inappropriate control issues as opposed to an expectation of a reasonable conversation about something important with the person with whom you share your life. A conversation might be initiated by the so called controller in the hope of influencing the other person to change behaviour which they feel is threatening the foundation of the relationship. Whether this attempt to influence or control is reasonable or unreasonable is depends on your point of view. If the relationship is strong these exchanges are productive, useful and keep the relationship on a sound footing. If the relationship is struggling, the exchanges may become aggressive, negative, recriminatory or  accusatory. Things may have gone too far for the couple to put things right, however much talking they do. Perhaps reasonable exchanges about what is fair and right in a relationship needed to be had years before, before the situation became irretrievable. So influencing your partner through rational discussion is vital to a healthy relationship. This is appropriate and to be expected.

However, it is easy to think of situations where one person is seeking to control the other inappropriately. Examples might be trying to prevent them seeing their friends and family, to cut them off from other relationships, force them to eat, drink or dress in a certain way, or control their conversation, thoughts or beliefs. These would be issues where controlling behaviour would be inappropriate and usually wrong. So accusations of control need exploration and not just to be accepted at face value. We need to unpick the behaviour behind the assertions and ask what is really going on.

So people should change their understanding of the word ‘Control’ and dig deeper. They should think about what is really being asked, is it a reasonable or unreasonable request?

At the point where the so called controller says, in answer to a question about a request: “OK, it doesn’t matter, it’s not important.” there are two possibilities:

The first is just that it’s not important

the second is in getting close to terminal – they giving up on both on their partner and the relationship, it doesn’t matter any more. Then they may well find themselves in family mediation, quite possibly with me, saying “My ex is a controller . . . ”

For more information go to http://www.focus-mediation.co.uk

Marrying the Same Person after Divorcing them

Tech billionaire Elon Musk remarried wife Tallulah Riley. Their first marriage was in  2010, they divorced in 2012, but then re married in. July 2013, then filed a second divorce at the end 2013. Liz Taylor, Pamela Anderson and Mel Griffith, all remarried their former spouses. Why on earth do people do this?

01_R04ELS_1120075kWell, perhaps it isn’t as mad as it sounds. Although these celebrity remarriages usually ended in a second divorce it isn’t always the case. Apparently research into 1000 couples found 72% of remarriages were successful. It seems that the power of their shared history, children and lives carried a lot of weight. Many regret their divorce and are brave enough to try and put things right, try and put the clock back. This is hard, as it is a very public admission of a very serious mistake, but the stakes are high and it is well worth facing down the comments and criticism to try and live the right life and put right a big mistake, if you’ve made one.

As a mediator I sometimes get the chance at the end of a mediation, to ask clients I have got close to if they could go back in life, would they change anything?  This is especially interesting where people are divorcing for a second or subsequent time, as they have often considerable experiential insight into their situation. What they often say is they regret their first divorce most. They wish they had worked much harder at their first marriage. Some men especially think they divorced and remarried younger women very like their first wives and wish they had stayed put.

The biggest problem is behaving rationally when in the throws of the grip of a passionate affair. It seems inconceivable that it will end or there would be any way back to their old relationship. Also once everyone knows what has happened there is a weight of expectation that the marriage is over and will end. Countering this expectation and the powerful emotions of the new relationship becomes almost impossible, even if at some level there are doubts, regrets and a feeling it shouldn’t have happened. Perhaps we are too quick to be off with the old and on with the new. Perhaps we should hesitate more and take much more time before divorcing. The present divorce laws make it worse. The process requires someone to be at fault, to get a divorce in under two years. Supposing we stopped all that and made the process administrative, something that takes place over time. The questions might involve asking each person if they are certain the relationship is over or might be saved. It might help pick up those cases where actually the relationship isn’t over at all. That would be worth some effort.

Mediation in Oxford: Fast and Affordable: An Outbreak of Sanity for Separating Couples.

Mediation has been around for at least thirty years and is now used by a vast proportion of separating couples. It is actively promoted by the government and the courts as the preferred way for couples to sort out their separation. Oxford judges frequently recommend couples to mediation instead of battling it out in their over-crowded Family Court. They will not start a new case unless the couple has first met with a mediator to find out about mediation. Here is a guide to what is involved when you come to Focus Mediation in Oxford.

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You start by coming to a MIAM: a Mediation Information and Assessment Meeting. This is time spent alone with your Focus mediator, who will want to understand what has happened to you. She then explains the process of mediation. You can come to the MIAM on separate occasions, or you can come as a couple: either way, you get time alone with the mediator and a full explanation of what lies ahead.

Once you had your MIAM, the joint sessions start, spaced to suit you, your timetables and what you can afford. These sessions give you a safe, neutral environment in which you can tackle your issues: the kids, the money, where you are each going to live.

You might start with a session working out a timetable for sharing caring for the children. Or you might launch straight in to disclosing your finances to each other, so that your mediator can write up your Financial Statement; then, when you can see what you’ve got, your mediator will help you make a plan: sell the house, or transfer it to one of you, or keep the house until the children are older and sell it later; set an appropriate level of maintenance … whatever seems best for your particular case, bearing in mind all your circumstances, including the local problems presented by living in an expensive part of the world like Oxford. Focus Mediators are also family lawyers: they know what the solicitors will be looking for and what the court is likely to approve. They can give you helpful legal information to inform your decision-making. You need not feel lost and frightened.

Once you have agreed all the aspects of your settlement (and preferably taken your solicitor’s advice on the proposals), your mediator will record them, and they will be handed to the solicitors who can turn them into a Consent Order, sealed by the Judge. This makes your agreement binding and makes any pension share happen, if you are divorcing. If you are an unmarried couple splitting up then your solicitor can make the agreement binding in another way, so it cannot be re-opened later.

You might have three, four or five joint sessions, depending on how many issues there are to cover and how co-operative you can both be. Focus mediators work fast and effectively: they are dedicated to helping you reach a settlement as quickly and cheaply as possible. Their reputation depends on it!

Focus charges £100 + VAT for each MIAM or £150 + VAT for a joint MIAM, then £125 + VAT per person per hour, with concessionary rates for people on low incomes. The cost per person of a full mediation is usually between £200 each (single session of 1 ½ hours at concessionary rates, no documents) and £1,300 each (4 sessions and two documents on a fully successful mediation at £125 ph). Legal Aid is also available (unlike solicitors, who can no longer offer it).

If you are separating and live in or around Oxford, it would be sensible to come to meet Caroline Friend, Senior Mediator at Focus Mediation. The office is in Summertown at Prama House on South Parade. Caroline can help you quickly and affordably in a matter of weeks, and avoid the horrendous costs and delays involved in court proceedings. Doesn’t that sound like the sane thing to do?

Separation Options – What is Expensive? What is Affordable?

Mediation is a process where an impartial mediator helps you communicate and sort out agreements on things you disagree about. You choose when it happens, and your priorities are respected. If both of you want to resolve problems in mediation, whether it is differences about your children or how to split your assets, money and pensions, then you will be able to resolve all this and more in mediation. Issues that currently seem insurmountable can be sorted out and mediation which costs a lot less than litigation, you share the costs between you and is free if you are eligible for legal aid.

shutterstock_74106811 Finances:

If there are financial issues you need to sort out then the mediator will explain how to work through the information (called disclosure by mediators, solicitors and the courts) and help you to build up a full and detailed picture of what you have, then you go on to discuss what you each will need in your future, separate lives. Solicitors can play an important part advising you alongside mediation. However, it will be more effective and cheaper for your solicitor to advise you once you have completed disclosure in mediation, as they can see what your situation is and what advice is right for you. This is faster and simpler than completing financial disclosure through your solicitors and using solicitors’ letters to communicate.

Children:

If you are separating from each other how are you going to make arrangements for your time with your children and for the school holidays? Do you need someone to help you talk this through? At Focus Mediation you can prepare a parenting plan to help you work through the future together.

Do you think that children under 4 should have overnight stays with your separated partner? Even the academics find this a tricky topic so how do you know what is best? At Focus mediation we will support you as you talk through these tricky issues, they are YOUR children and you know them best.

Mediation is not about getting back together, but getting on with your future lives, and those of your children, in a way that works for you.

Costs

Mediation is a pay as you go service. You pay for each meeting at the end; you each pay your own costs unless you agree otherwise. You don’t have any hidden charges for emails letters or telephone calls as there should not really be any. You may not have to pay anything if you get legal aid.

The question to ask yourselves, is, can you afford not to mediate? Come to a mediation assessment and see how it works.

 

Jacket Pockets

When people split up they often try to get the better of the other person. They most often fight about money. Resources feel scarce. You may think if the other person has more, you will have less. This seems unfair and a struggle for money can begin. However, our instincts lead us astray so often in this situation. Why? Simply because if the case is decided by a judge or when it is settled by agreement, all the assets and liabilities are added up and the total divided very often equally but in any event what each person has spent has gone, so making your ex pay for something makes no difference, as their position is taken onto account and you’ll pay half. Whatever has been spent on anything is effectively paid pretty mulch equally once those assets are split, as each party’s current position is added into the pot and that effectively takes their spending pre settlement into account. Examples include:

  • Bank accounts and investments
  • Properties
  • Pensions
  • Credit cards and debt

The way to think of it is as a jacket with lots of pockets. The pockets have money or debt in them. The up to date value of the pockets will normally be used in the settlement or judgment. Very occasionally someone may succeed in an adding back argument, for example, adding back a significant value they argue the other person has squandered in some way or applied in a way that is prejudicial to the outcome. Much would depend on scale and if the application of money was unusual and prejudicial to the person who had no control or say in it.

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Very often couples argue fiercely over which pocket something is paid from. They don’t want it paid from ‘their’ pocket, it must come from the other person’s pocket. This is an illusion when the pockets are totalled as it simply makes no difference.

Recently I was mediating a case where everyone got very bogged down in pockets arguments. Even their advisers struggled to remember it was all one jacket. Each was taking the same drawings from their business and getting their bills paid on top, they were ticking over OK, but one wasn’t paid any child support, the other wanted child support. This would mean the other person didn’t have enough to live on, they would have to take more from the business or get into debt. It was a joint business, so very much a one jacket situation. There needed to be a discussion about the extra costs of the children and an agreement for that to be met where it arose. However there was a feeling of outrage no child support was being paid. It looked as though an application to the Child Maintenance Service would be made. This would result in an assessment on historic and very high figures that would necessarily involve the paying person having to take more from one jacket pocket to pay it, even if it was overdraft and debt, and then later it would be taken into account. These people has agreed to take less from their business not more, so the whole argument was a pointless totemic argument over the contents of the pockets of the same jacket, the jacket they were going to be splitting between them anyway and they had agreed it would be split equally! Other examples include:

  • Someone making a big pension contribution to take money off the balance sheet and out of their pocket – it does no such thing, as the pension is part of the jacket and the contribution and its tax relief is included and split!.
  • Buying an expensive car then seeking to depreciate it as it isn’t new any more – this takes money off the balance sheet, but the car is usually included at its purchase price
  • Leaving money undrawn in a business controlled by one party, in the hope no one will include the full value of the undrawn capital or take into account the undrawn income as relevant to maintenance. It has to be one or the other. It is usually quantified and included.

I have lost count of how often this type of thing happens and people think their thinking is so original and they are so clever and they will get more in ‘their’ pockets and be better off. People who work with separating couples for long will have come across all this countless times, they know where the bodies are buried!  How ferociously people fight over all this – when it doesn’t matter. Thought you should know, just in case it affects you. You’d be better of saving your breath to cool your porridge, as they say. For more case studies, please visit: http://www.focus-mediation.co.uk/case-studies

Bring Back the Calderbank – Stop Mad Litigation

A few years ago when people divorced they were encouraged to make offers to settle that were “Without Prejudice Save As To Costs”. These were known as Calderbank offers, after the name of the divorce case in which they were first made. The idea was you made these without prejudice offers that the judge would see at your appointment to try and settle the case – and they would try to use them to help people settle. There’d also be open offers that the judge would see. These would usually be very positional, by which I mean they’d be at the extreme end of what was likely to be the outcome, so were pretty useless – and we still have them.

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People are afraid to tell the judge what they’d really pay to settle in case s/he plays split the difference and they end up with an unfair settlement. So there’d be this hidden second tier of offers called the Calderbanks. These were always without prejudice, which meant the judge at trial didn’t get to see them and they couldn’t prejudice his or her decision-making. These Calderbank offers were a very serious matter. People had to put their money where their mouth was. If you put in a good Calderbank offer, then the other side was at risk of having to pay your costs from one month after the Calderbank offer was made. You’d usually get your costs if your Calderbank offer was better than the trail judge’s award – so if you beat the judgment, you got your costs. This really focused minds. Your lawyers would tell you if they thought you might end up having to pay the other side’s costs. It made people think and make sensible offers. It made a lot of cases settle earlier than they do now.

 These days there are no costs consequences to taking up an unreasonable position, as each side pays their own costs. Now people can just mouth any old rubbish, be as unreasonable as they like, yet still each side must normally pay their own costs. The total costs are paid from the assets before they’re split, so effectively you pay half of the total costs each – or half of each other’s costs. This can be a bit unfair if one party has very expensive lawyers or is unrepresented, but it’s just how it works. There is no incentive to be reasonable.

 In non family civil cases, people still have the equivalent of the Calderbank offer system. It does help prevent unreasonable negotiating positions. I think we should bring it back and didn’t agree with its removal in the first place, as it allows people to hold out for unfair negotiating positions with impunity. It forces the reasonable person to go to trial or settle for less than they should get, with no costs consequences. Mad!

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