All posts by Bishop & Sewell

Is there a marriage between Elle Macpherson and her “husband” to dissolve, or not?

Is there a marriage between Elle Macpherson and her “husband” to dissolve, or not?

Some of you may remember the dramatic press coverage of the breakdown of the relationship between Sir Mick Jagger and Jerry Hall, when he said that there was never a legal marriage between the two of them and therefore there could be no divorce – potentially leaving Jerry Hall in a very different financial position than on a divorce. Of course it is always a good thing to remind people that there really is no such thing as a “common law” spouse in English law. So, it doesn’t matter how long a couple have been together, or how many children they have together, if there has been no legal marriage, there can be no enforceable financial claims as a wife, on the end of this union. Although the other celebrity couple possibly faced with this issue are not living in England, and not seeking a financial settlement here, there will no doubt be some unforeseen circumstances arising for them on discovering that they were not in fact legally married.

Weddings in Fiji

The couple that we are all talking about is; Elle “the body” Macpherson and billionaire Jeffrey Soffer, who were allegedly married in 2013 in a romantic ceremony in Fiji. According to the tourism information available, wedding ceremonies in Fiji are “recognised as legal worldwide”. However, it seems it is not quite that clear cut, as the Fiji embassy in Washington cautions visitors to its shores, who intend to get married there, that the law requires them to obtain a marriage licence from a marriage registry prior to the ceremony.

If it is correct that there was no legal marriage ceremony, then it may turn out that Elle and Jeffrey end up with consequences that neither of them intended or contemplated.

It is ever so slightly unbelievable that two people, who are wealthy business people and who no doubt have access to excellent legal advice, did not check the position beforehand. We will have to wait and see whether the reports we are seeing now turn out to be correct in what will no doubt be another high profile celebrity uncoupling.

If you have any questions about any of the issues raised in this article, please contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email lbarretto@bishopandsewell.co.uk.

 

International Surrogacy and How to Bring Baby Back to UK

International Surrogacy and How to Bring Baby Back to UK

Sex, love and financial issues usually top the concerns of couples planning a baby but for those who turn to surrogacy after years of trying to conceive, the focus quickly switches to legal problems.

Even so, it is usually only months into the process that the unglamorous topic of immigration and nationality law rears its head, often causing heart-breaking delays, frustration and additional costs for couples whose babies have been born abroad.

Couples who consult me on the best way to bring their babies back to the UK are often taken aback by the variety of information I need from them before I can answer their questions, as the solution is rarely straightforward.

In short, there are three main routes open to intended parents:-

Route 1: Apply directly for British passport 

This is only an option where the surrogate mother is unmarried, the intended father is British and the intended father is genetically related to the child. Among other requirements, the legal connection between father and child must be documented, and an approved DNA provider must show the genetic link.

Route 2: Apply for the baby to be registered as British and then apply for a British passport

This is a two-stage process and is probably the most common route for British parents. It is usually an option either (i) where the surrogate mother is unmarried and the intended mother is British with a genetic connection to the child, or (ii) where the surrogate mother is married, one of intended parents is genetically related to the child and that parent is British.

The registration application is a discretionary one, meaning it is up to the Home Office whether they choose to approve it or not. Among other things, the intended parents will need to demonstrate the genetic link and show that a parental order is likely to be granted to have the baby registered as British.

Once the baby has a Registration Certificate, the intended parents can apply for a British passport for the baby.

Route 3: Apply for a non-British passport for the baby and then apply for a visa for the baby to come to the UK

If couples do not fall into any of the above categories, they are likely to be looking at this route. It is most common in situations where the parents are living in the UK but are not British, or in cases where neither intended parent has a connection to the child. It is particularly important to bear in mind that if the baby cannot obtain a passport from its birth country or another country, then it won’t be able to apply for a visa or travel.

There are a variety of different visa routes that may be open to the baby, and the exact one will depend on the family’s circumstances. In some cases, the family may be able to apply for the baby to be registered as British once it is in the UK and a parental order has been granted.

The above three routes provide a very generalised summary only of the routes available but the exact steps parents need to take will depend on their particular circumstances.

It is also extremely important to bear in mind that the laws and practice on surrogacy and immigration change constantly. This means that intended couples have to be very careful in searching for answers online, as advice from a family in identical circumstances who brought a baby back to the UK a year previously may now be completely outdated.

By way of example, the Home Office’s own guidance on surrogacy and UK visas, ‘Inter-Country Surrogacy and the Immigration Rules’, is in fact several years out of date. It has not yet been replaced and still contains a lot of useful information but it should only be consulted with caution.

Our advice to couples considering surrogacy would be to do your research very carefully. Clinics abroad will often downplay the difficulties of bringing baby home and it is very tempting to listen to what they say – especially when they are promising you your heart’s desire!

That said, in our experience, it is nearly always possible to bring your baby back to the UK one way or another. However, the price for couples who are not properly informed is usually several unnecessary extra months abroad, with all the additional emotional and financial costs this entails.

If you are considering using a surrogate abroad and would like advice on how to bring your baby back to the UK, please do not hesitate to get in contact with a member of our Immigration team on 020 7631 4141.

Karma Hickman is an Associate Solicitor in our Immigration team.

‘Keeping up with the Law’ on surrogacy

‘Keeping up with the Law’ on surrogacy

It is reported in recent news that celebrities, Kim Kardashian West and her husband, Kanye West, are expecting their third child, by means of a surrogate. If you have been ‘Keeping Up With The Kardashians’ on their reality TV show, you may be aware that Kim revealed her desire to have another child, but expressed her worries, due to fertility issues and high-risk pregnancies. It is therefore somewhat unsurprising that she has opted to expand her family, (which includes two children whom she carried), by using a surrogate.

There are several reasons why a couple may choose to use a surrogate, whether as a last resort, due to health reasons, or it simply suits your personal circumstances. Whatever your reason, it is important that you are aware of the legal position when it comes to surrogacy, and what it entails.

What Is A Surrogacy Arrangement?

It is an arrangement whereby a woman carries a child in pursuance of an arrangement:

  1. Made before she began to carry the child, and
  2. Made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by another person or other persons.

Are Surrogacy Arrangements Legal?

They are, however there is a prohibition on initiating or taking part in negotiating surrogacy arrangements on a commercial basis. It is a criminal offence!

Payment of money is permitted only ‘to the woman for her benefit in respect of the carrying of the child in pursuance of the arrangement, to that promise or understanding’.

How Can You Gain Legal Recognition as the Child’s Parents?

Legally, the person who gives birth to the child is the legal mother. You will need to apply for a Parental Order within six months from the day on which the child born in order to obtain parental responsibility.

In accordance with statute, the court must be satisfied that all parties ‘have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order’

How Can We Help You?

  • Advise generally those considering surrogacy and whether it is suitable;
  • Represent commissioning parents in proceedings for a Parental Order;
  • Identify international issues where clients need complementary advice in addition to family law (for example, immigration / nationality);
  • Provide written opinions and advice for those living abroad about whether and how UK surrogacy law applies to them;
  • If a Parental Order is refused or cannot be made, advise on other orders that might be made to recognise the child’s relationship with commissioning parents.

If you are considering surrogacy, or dealing with any legal issues concerning your surrogacy arrangement, please contact our team of specialist Family solicitors on 020 7631 4141, to arrange a consultation to discuss your matter in detail.

In the meantime, please feel free to visit the ‘Surrogacy’ page on our website for more information.

Angela Kwokori is a Trainee Solicitor in our Family team.

 

What does parental responsibility really mean?

What does parental responsibility really mean?

Often, when clients come to see me they want to talk about their “rights” when it comes to their children. This is often because they are involved in an acrimonious stand-off with the other parent of their child, and it can become difficult to disentangle the feelings they have for their ex-partner, from what is best for their child. Our law has defined a term called “parental responsibility” (rather than “parental rights”) because it is more appropriate to place the emphasis on the responsibilities rather than the rights which parents often wish to forcefully assert.

Parental responsibility

In terms of the Children Act 1989, ‘Parental Responsibility’ (“PR”) consists of “…all the rights, duties, powers, responsibilities and authority which, by law, a parent of a child has in relation to the child and his property”. You will note that the definition does actually include “rights” but the emphasis is on what responsibilities parents have towards their child when they make decisions about that child’s property and welfare. This includes, but is not limited to, the child’s religion, where he lives, where he is educated and the appropriate medical treatment for him.

Parents, who were married to each other on the date the child was born, both have PR for that child. You can imagine that the exercise of PR can sometimes cause conflict between those parents even if they are not separated, and especially if their relationship with one another is not good, or if they have separated in difficult circumstances. There is very little guidance in our legislation about when people who share PR are able to act on their own, and when they must act in consultation or in agreement with anyone else who has PR.

There is guidance in our case law, but even so, each case will be decided after considering its own particular facts. Our Courts encourage parents to have respect for one another and to ensure that the rights of the other parent are respected for the benefit of the child. The Courts do not like to interfere in decisions relating to children, unless it is absolutely necessary to protect the child. So, you will have seen some cases involving whether or not a child should be immunised, sterilised or circumcised, making headlines. You might have also seen cases relating to religion in the news, especially where there is a difference of religion being practised by each of the parents, and they cannot agree which religion the child should follow (see below).

Everyday decisions – when do you have to consult the other parent?

There are certain basic everyday decisions that can be made without notifying or consulting with the other parent or holder of PR. Examples of these are:

  • What activities the child undertakes (e.g; ballet or chess)
  • How the child spends his time generally – we quite often see differences in parenting styles in this category so one parent might feel that the child should enjoy less screen time and more time pursuing outdoor activities
  • Routine discipline – this will include setting boundaries but will not include physical chastisement
  • Personal care of the child such as washing, dressing, grooming and feeding
  • Routine medical check-ups
  • Generally participating in religious and spiritual pursuits

When the parents who share PR follow different religions, generally it is thought that it benefits the child to have the opportunity to learn about and experience both religions, but occasionally this causes conflict, and a Court is called upon to decide what is in that particular child’s best interests. As you can imagine this can be a very emotive topic which our courts are often called upon to adjudicate.

  • Attendance at school functions and parents’ evenings

There are some decisions where there is no requirement for consultation but the other parent should be notified. These are:

  • Holiday bookings and taking the child abroad during school holidays or agreed contact time
  • Planned visits to a GP and the reasons for this
  • Change of address within the local area that does not destruct contact arrangements nor require change of school
  • Medical treatment in an emergency
  • Changes in living arrangements including a change to people that are living in the same household

Decisions that require consultation

The following is a list of decisions that require all people with PR to make in consultation with one another.

  • Selection of the school that the child is to attend
  • Applications for authorised absence from school and the reasons for this
  • The child’s living arrangements during the school holidays
  • Any medical treatment beyond routine check-ups
  • Circumcision, sterilisation and immunisation require consent from all parties who have PR, or an order from the Court
  • Terminating prescribed medication
  • Surprisingly, the age at which the child should be able to watch videos recommended for children above the age of 12 and 18. There was actually a case concerning this issue called A v. A which was heard in 2004
  • Consenting to the marriage of the child but only if there is no child arrangements order
  • Change of the child’s surname
  • Relocation to another part of England and Wales or abroad

In general solicitors should do their best to encourage the parents to work together and co-operate. Sometimes we are successful at persuading them, and sometimes we are not, and we then turn our attention to assisting them in getting to a solution that works for them and for their children and preparing their case for court in the most constructive way possible. As you can see there are many areas in which possible disputes can arise especially when tensions are already running high between the parents who are under a considerable amount of strain during or after a difficult separation.

If you have any questions about any of the issues raised in this article, please contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email lbarretto@bishopandsewell.co.uk or alternatively, in relation to family matters more widely.

Bishop & Sewell speaking at the Landlord Investment Show – 6th September 2017

Bishop & Sewell speaking at the Landlord Investment Show – 6th September 2017

Members of the Landlord & Tenant and Property teams will be at the National Landlord Investment Show  in East London on 6th September 2017.

This event provides a platform for current and prospective landlords to keep up-to-date with industry developments and provide access to a host of leading experts, suppliers and educational seminars.

Our Landlord & Tenant Department will be speaking on the subject of ‘What to look for when buying a leasehold property as an investor’ in Seminar Room 2 at 11:50 and several members of the team will be on hand to answer questions.

For follow-up or queries please contact leasehold@bishopandsewell.co.uk or telephone 020 7631 4141 and ask to speak to a member of the Landlord & Tenant team.

Landlord Investment Show

Where are we now on divorce?

Where are we now on divorce?

As the summer holidays move towards a close there will be marriages feeling the strain of prolonged association and activity and many unhappy people concluding they ‘cannot go on like this’.

But for those married or in civil partnership contemplating divorce or dissolution where does the law stand?

Grounds for divorce

Contrary to common belief the grounds for divorce have not changed in well over 40 years – or rather the ground for divorce as there is only one – irretrievable breakdown of the marriage/partnership – which must be evidenced in one of five ways (four for a civil partnership ) and you cannot make up your own grounds, such as ‘no longer getting on’ or ‘grown apart’.

Couples are still stuck with: adultery (uncondoned- but this does not exist for civil partnerships), or behaviour such that one spouse cannot reasonably be expected to live with the other one’ (usually shortened to unreasonable behaviour), or 2 years’ desertion (rarely if ever used as highly technical) or 2 years’ separation with consent (once popular, but less so now as people want to move on in their lives rather more swiftly) or 5 years’ separation without consent (few wait that long these days).

In practice most petitions are based on adultery or unreasonable behaviour, but whatever the assertions provided they are unopposed and satisfy the court’s scrutiny – they as a general rule have no effect on the outcome of the ancillary applications relating to children, houses or money. In cases where there has been domestic violence of any sort more detail is often given to support a claim for an injunction or where there is a dispute over children’s welfare, but conduct has to be exceptionally egregious before it has any bearing at all on the outcome of a spouse’s or partner’s claim for a financial remedy. The courts simply turn away from any such investigations except in the most extreme cases and those accused of unreasonable behaviour simply let petitions go through whilst stating in correspondence that such accusations are untrue and not accepted in order to save face or preserve their technical legal position.

Those served with an adultery petition have to tick a box and sign to say that they accept the assertion, but that is all. No co-respondent need be named and no point would be served by dragging one into the spouses’ dealings with each other.

But if there is no nexus between conduct or adultery cited in a petition why is it cited at all? The short answer is that it is a left over, even though somewhat watered down, from a past age and it now serves no central purpose, at least as far as the courts are concerned.

No fault divorce

Not surprisingly therefore there have been many recent and increasingly noticeable stirrings for reform of the law on relationship dissolution to make it ‘no fault divorce’. This has been led in particular by Resolution, an organisation run for and by Family solicitors, which lobbied all major parties in the run up to the last election asking them to include No Fault Divorce in their manifestos. Labour did so, while the Conservative party was the vaguest. The Ministry of Justice may be beavering away on the subject but there is no evidence of this and no new family legislation planned save that on improving the arrangements for the hearing of domestic violence cases… but that’s another story.

Implications post-Brexit

So what lies ahead with impending Brexit and the Repeal Bill? The Government set out in the Queen’s Speech that they will try to ensure that the same rules will apply ‘wherever practicable’. It is unclear in family law, as in other areas, how this would work and this is particularly important as these days so many family issues, including divorce, straddle different countries and jurisdictions. Whilst at present we have common rules such as on where divorces can be instigated, on various legislative aspects of financial claims and on dealing with disputes, it is far from clear what will happen when we have to move away from EU law and fall back on various unwieldy international conventions – presumably with no oversight from a court such as the EU Court of Justice (CJEU) so unloved by the Brexiteers.

At particular risk are all the laws relating to child abduction and maintenance – both areas where enforcement is a central issue. Whilst enforcement of court orders on family law can at present be dealt with speedily across the borders of EU countries with reciprocal enforcement in the various UK jurisdictions – often with state assistance – if these facilities are effectively lost on exit from the EU it will cause real and costly problems for families caught up in relationship breakdown with an international element.

We may not get ‘no fault’, but also no relief. 

Eileen Pembridge is a Consultant in our Family team.

If you require legal advice in relation to a divorce or family relationship matters more widely, please contact our team of expert matrimonial solicitors on 020 7631 4141.

Will All Be Fair in Love and Law?

Will All Be Fair in Love and Law?

An Update on the Possibility of Civil Partnerships for Opposite-Sex Couples

After their appeal was rejected by the Court of Appeal in February 2017, Rebecca Steinfeld and Charles Keidan have been granted the right to pursue their case, seeking the legal right of opposite-sex couples to enter into civil partnerships, in the Supreme Court.

The couple, who are in a committed, long-term relationship, seek legal recognition of their relationship by way of civil partnership. However, they are presently precluded from doing so by virtue of the Civil Partnership Act 2004, which only allows for same-sex couples.

Their appeal was previously rejected on the basis that the government should have more time to consider the impact of the extension of marriage to same-sex couples on civil partnerships, prior to making a final decision on whether to dispense with civil partnerships or extend to opposite-sex couples.

Current position

The law, as it currently stands, allows same-sex couples to legally formalise their relationships by way of either civil partnership or civil marriage (pursuant to the Marriage (Same Sex Couples) Act 2013). Opposite-sex couples, however, are limited to only civil marriage, in order to gain the legal benefits and protections that come with a legally recognised relationship.

The couple argue that, ‘whilst most couples want financial and legal protection for themselves and their families, not all feel comfortable with marriage’. They are opposed to civil marriage and claim that the bar on civil partnerships for opposite- sex couples is discriminatory and a violation of their Human Rights.

Why a civil partnership over a marriage?

Some couples may feel that marriage is an outdated system, which is traditionally rooted in patriarchy and religion. This may not be reflective of the way they conduct their relationship, particularly in these modern times where traditional roles, for some, are a thing of the past.

It is arguably not unreasonable for those seeking legal recognition of their relationships and entitlement to the benefits afforded, but who are opposed to the concept of marriage, to wish to enter into another formal arrangement, which is better reflective of their values and beliefs.

Rebecca Steinfeld and Charles Kedian have reportedly said they wish to formalise their relationship within a social institution “which is modern, which is symmetrical and that focuses on equality, which is exactly what a civil partnership is”.

How do Civil Partnerships and Marriage compare?

  • Marriages are solemnized by saying a prescribed form of words, whereas Civil partnerships are registered by signing the civil partnership document, with no words required to be spoken.
  • Marriages can be conducted through either a civil ceremony, or a religious ceremony if the religious organisation has agreed to solemnize marriages of same sex couples according to its rites. The formation of a civil partnership is an entirely civil event. Civil partners can choose to add a ceremony to follow the formation of their civil partnership but this does not form part of the legal formation.
  • Marriage certificates include the names of only the fathers of the parties. Civil partnership certificates include the names of both parents of the parties.
  • In terms of annulment, a marriage can be annulled, if at the time of the marriage the respondent was suffering from a venereal disease in a communicable form. This is not a ground for annulling a civil partnership.
  • The facts that one must rely on for divorce and dissolution of a civil partnership are identical, save that a civil partner is unable to rely on adultery.
  • Equal legal treatment in matters including inheritance, tax, pensions and next-of-kin

So what next?

The couple ‘hope the Supreme Court will deliver a judgment that will finally provide access to civil partnerships for thousands of families across the country’.

We eagerly await the outcome.

Angela Kwokori is a Trainee Solicitor in our Family team.

If you have any questions regarding the legal consequences of a marriage or civil partnership, including divorce and dissolution, please contact our team of expert matrimonial solicitors on 020 7631 4141.

Surrogacy Update – Parental Orders

Surrogacy Update – Parental Orders

In a case published last week one of our judges significantly extended the strict 6-month time limit for commissioning parents to apply for Parental Orders following an overseas surrogacy agreement. In this particular case the parents had delayed applying for a Parental Order at the time of the child’s birth in India, because of the significant legal costs involved and because they were worried that the order might not be granted.

The baby was born in India in 2010 and shortly after birth he travelled to England with the two commissioning parents, and has lived with them since then.

The parents intended to apply for a Parental Order at the time that they returned and the required consent documents were signed by the surrogate parents to extinguish their parental rights in respect of the baby, however the parents didn’t pursue their application for the reasons set out above. They also became concerned that if they didn’t succeed then the baby might be removed from their care.

When the parents heard about another case in which it was made clear by the Court that the six month time period could be extended at the discretion of the judge, this encouraged them and they then decided to apply for an Order.

There was a six year delay which led to difficulties in the parents being able to serve the surrogate parents with copies of their application. They were eventually located and consulted with a lawyer, although they didn’t sign the documents (which had been explained to them in Hindi) however there was no suggestion that the surrogate parents were unhappy with the arrangements, and the Court here inferred notice and effective service.

In this case the reasons for the delay in bringing the application for Parental Order were held by the Court to be valid. By 2010 there had been few foreign surrogacy cases which had been through the Parental Order application process and the procedure itself was uncertain. There were few reported cases explaining when the Court would grant Parental Order and when such an application was likely to be refused and there was little publicity of these types of cases.

In the judgement published yesterday it’s clear that the Court took the view that the baby’s lifelong welfare needs were met by making the Parental Order.

This case is significant because it is the first one extending the time limit for making a Parental Order where the applicant parents knew they could have applied for the Order at the time of the child’s birth.

The law in the area of surrogacy and assisted reproduction is constantly evolving and it is always advisable to seek advice from a specialist family solicitor if you are thinking of entering into any such arrangement.

You can contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email on mailto:lbarretto@bishopandsewell.co.uk if you wish to discuss any issue raised in this update or in relation to surrogacy matters more widely.

New divorce form naming adulterers causes concern

New divorce form naming adulterers causes concern

A new divorce form, introduced by the government to make the legal process more user friendly, inviting the writer to ‘name and shame’ is causing concern amongst family lawyers.

Margaret Heathcote, a Consultant Solicitor in our Family team and also Vice-Chairwoman of family law group Resolution said “Generally speaking, we don’t name the third party. It increases the conflict from day one”.

Read the full article here.

If you require family law advice in relation to a Divorce or regarding Family Relationship matters more widely, please telephone 020 7631 4141 and ask to speak to a member of our expert Family team.