Non-Molestation and Occupancy Orders and Ancillary Relief - Essay Example

?Solicitor’s Firm and Address Terri Address Dear Terri RE: Non-Molestation and Occupancy Orders and Ancillary Relief Further to our meetingof last week we have had an opportunity to review the relevant law and facts. You specifically requested advice on the steps that can be taken to prevent your husband’s violence against you and what you might expect in terms of division of the matrimonial property upon the dissolution of your marriage. In this regard, we advise you to file for a non-molestation order together with an occupancy order with a view to obtaining the cessation of violence and advise that the matrimonial property will be settled upon divorce under what is referred to as ancillary relief. Further details are set out below. Non-Molestation Order In order to put a stop to your husband’s violence, you are at liberty to apply to the courts for a non-molestation order under Section 42 of the Family Law Act 1996 (as amended).1 There is one pre-condition necessary for applying for a non-molestation order. The order can only be in respect of associated persons.2 Associated persons are described by Section 62 of the Family Law Act 1996 and include any number of domestic relationships including spouses.3 Therefore you and John are associated persons. Moreover, should you apply for a divorce the court can make a non-molestation order in the course of family proceedings. Either way, the court can make the order irrespective of whether or not you apply for a divorce or whether or not there are any other family proceedings.4 In deciding whether or not a non-molestation order is appropriate the court will examine all of the facts and circumstances of the case including the need to ensure your well-being, health and safety. In this regard, the resulting order will have the effect or ordering John to stop the violence and may also order him to avoid doing anything else that amounts to abusive behaviour or harassment.5 Essentially, a non-molestation order may refer to specific acts of violence or harassment or abusive conduct or it may be expressed in general terms.6 A non-molestation order may be for a fixed period or made until further notice.7 We would suggest that since you are sure you want to file for a divorce that you file for a divorce and seek a non-molestation order as interim relief with a view to having the order open until further notice. According to Section 42(8) of the Family Law Act 1996, once family proceedings are withdrawn or dismissed, the non-molestation order ceases to be effective.8 The consequences of Section 42(8) should not be of concern to you, since the divorce proceedings will only be withdrawn or dismissed if you either reconcile with John (in which case a non-molestation order would not be necessary) or if it is established that the grounds for a divorce are not substantiated (in which case there was no need for a molestation order in the first place). Regardless, a non-molestation order will provide you with significant safety since a breach of the order is a criminal offence for which John faces a term of imprisonment for up to five years.9 Occupation Order Obviously, you may want to ask John to vacate the matrimonial home, but the problem with that is that since he is a co-owner under a tenancy in common, he has the right to come back and occupy the home at any time.10 This is because pursuant to Section 30 of Part IV of the Family Law Act 1996, both spouses have the right against eviction or exclusion from the family home unless an occupation order is obtained under sections 33-38 of the 1996 Act.11 By virtue of Section 33, as an associated person with an interest in the family home as a result of the tenancy in common, you have a right to apply for an occupation order as a means of putting a stop to John’s violence against you.12 An occupation order will make an order for you to either occupy the home or part of it or order John to vacate the home or part of it.13 In making the order the court will take account of the “housing needs and housing resources of each of the parties and of any relevant child”; the parties’ “financial resources”; and the “likely effect of any order” relative to the “health, safety, or well-being of the parties and any relevant child” and “the conduct of the parties in relation to each other and otherwise”.14 There are two relevant children since they are both 17 and 15 years old and are thus minor children. It is unclear whether or not John’s violence has been witnessed by the minor children or directed toward them. In any case it is not in their best interest to be exposed to violence against their mother. Thus the court is expected to take into account the effect of John’s violence on the health, safety and well-being of the children. The court will also take account of the relevant children’s housing needs and John’s housing needs and his ability to seek alternative housing. Not only does John have a sufficient income for self-support and for obtaining alternative housing, the couple also owns a flat as tenants in common. The court will likely make the order especially since John has a history of violence and the court will consider it in the children’s best interest to remain in the family home as opposed to uprooting them. Since it is more likely that the children will remain with their mother, the occupation order against John is the most likely outcome. When making any order with respect to or effecting the residence of upbringing of any minor child, the welfare of that child is of paramount concern.15 Ancillary Relief/Property Settlement The court may make a number of orders pursuant to Sections 22-24A of the Matrimonial Causes Act 1973. Further guidance is found in Section 25A of the 1973 Act which essentially requires that in making orders for property settlements, division of the matrimonial assets and maintenance orders, the court will take into consideration all of the circumstances of the case, focusing primarily on the children’s welfare.16 Essentially, the courts will make orders that are designed to reflect a fair outcome, responds’ to the parties’ needs and offers just compensation for the parties’ respective contributions to the marriage and the assets of the marriage.17 Section 25 of the Matrimonial Causes Act 1973 directs that the courts will take account of the income, “earning capacity and other financial resources” of the parties in dividing the matrimonial assets.18 Additional guidance and clarification is provided for by the House of Lords in White v White. In White, the House of Lords ruled that in dividing the matrimonial property, the court must undertake its best endeavours to achieve the fairest outcome possible. In seeking to achieve fairness, there must not be any discrimination in the manner in which the contributions made by the husband and wife are treated. However, the parties may be treated differently if there is a good reason for doing so.19 Thus far, it appears that the parties are relatively equal in that they are close in age, with you being 42 and John being 45. Since the court will also take account of the number of years you have been married, the fact that you have been married for 18 years suggests an equal distribution of the matrimonial property.20 During your marriage, you have both worked in similar professions with vastly similar income. However, what entitles you to slightly more compensation is the fact that you did take time off work to have children. John’s pension fund is more than twice the size of your pension fund and given that you took time away from work and thus your ability to amass a comparable pension fund was undermined. Therefore you will likely be compensated for this discrepancy in pension funds. John’s violence toward you may also be a factor that weighs against him in terms of the fair and indiscriminate division of the matrimonial assets. Also, in taking account of the welfare of the children who will likely remain in your custody, the court will likely be inclined to divide the matrimonial property so that you have the matrimonial home with an equity of more than 200,000 pounds and John will likely have the flat with an equity of 150,000 pounds in it. As for the house that you inherited prior to your marriage to John, it is not matrimonial property and thus should not be part of the divorce property settlement orders. As Lord Nicholls said in White: Property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property... Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it.21 In other words, regardless of when you inherited the house from your father, it is not generally considered to be matrimonial property as it was acquired from a source independent of the marriage. Since the property was inherited prior to your marriage it is further strengthened as a non-matrimonial asset. However, this does not mean that John has no claim at all to the house you inherited from your father. It simply means that his claim is “weaker” than a claim he might have to “matrimonial property”.22 However, it is unlikely that John will be successful in any claim to a share of the house that you inherited from your father prior to your marriage to John. The court when considering any claim to the inherited property, will consider the value of the property, its nature, the time it was acquired and any other relevant factor. However, as the House of Lords cautioned, “this factor can be expected to carry little weight, if any” in cases “where the claimant’s financial needs cannot be met without recourse to this property.”23 Clearly, this is not the case with John as he has a career and makes a healthy income, has managed to save money and is relatively young to ensure that he continues to earn a satisfactory income. In H v H (Financial Provision: Special Contribution) the wife and the husband inherited property during their 33 year marriage. The court ruled that the husband had played a significant role in the wife’s inherited property in terms of realizing its value and investing in it. Moreover, the husband’s inheritance had been used for the family and was therefore taken into account. However, the husband had kept one of his inheritances separately and did not link it to the family.24 It therefore follows that if you kept the inherited property separate and apart from the assets of the family, it will not be regarded as matrimonial assets and thus not likely to be a part of the division of property orders. It is also unlikely to be a part of the matrimonial property division if John played no part in the realisation and investment of the inherited property or in was not involved in contributing to its value. In Norris v Norris the court felt that any property acquired during the marriage, including inherited property should be property for which the court could use its discretion in diving matrimonial assets. In particular, the court felt that it was unfair that a spouse could simply keep the property segregated from the matrimonial assets and be rewarded for that behaviour.25 However, your case can be distinguished from this case since, you came into the marriage with this property and did not acquire it nor inherit it while married to John. Thus it is very unlikely that John will be able to claim any part of the house you inherited from your father unless he can prove that he contributed to its current value. In the final analysis, you can apply for an occupation and a non-molestation order to put an end to John’s violence against you. Moreover, should you file for a divorce, you can expect a fair and equitable division of the matrimonial property. You can expect for the property division to reflect your contributions to the marriage in terms of your having taking time off to have the children of the marriage. You will also be entitled to child support payments, but given your income and the fact that you can continue to earn, you may not be entitled to spousal support. You can also expect that the property you inherited prior to marrying John will not form a part of the matrimonial property. Attendance Note: John and Terri’s Estate The main issue with respect to Terri’s estate is which of the two wills represent a valid testamentary disposition of her property. According to Section 20 of the Wills Act 1837, a will cannot be revoked except by “another will or codicil” or “by a writing executed like a will” or “by destruction”.26 It therefore follows that the will dated 16 March 1997 was revoked by the will dated 20 November 2012. However, there is a problem with the latter will as the witnesses’ names have been scored through and this presents a difficulty with respect to whether or not the latter will satisfies the formal requirements for making and rectifying a will under section 9 of the Wills Act 1837. Section 9 of the Wills Act 1837 requires that in order for a will to be valid, it must be in writing, signed by the testator and attested to by at least two witnesses.27Obviously, the will has been witnessed by at least two witnesses. However, since the witnesses’ names have been scored through, the question is whether or not this effects the witness requirement. Section 21 of the Wills Act 1837 provides the answer to this question. Section 21 of the Wills Act 1837 provides that: No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will...28 Having regard to the manner in which a will is executed, it can be assumed that the alteration, (lines scored through the witnesses’ signature) occurred after the will was executed. A will is usually executed by the testator signing the document, followed by the witnesses signing the document. Thus the witnesses’ signatures represent the final act necessary for the execution of the will. The lines could not have been scored through the witnesses’ signature before they signed the document and therefore the alteration most likely occurred after the execution of the will. In any event, it is always presumed that alterations are made after the execution of a will although the presumption can be rebutted by sworn evidence to the contrary or by evidence obvious in the will itself.29 Therefore, according to Section 22 of the 1837 Act, such alteration would not have any effect unless the witnesses’ names cannot be read. In such a case, the will would be deemed unattested to by witnesses and thus would not satisfy the formal requirements for making and rectifying a valid will. The main issue is therefore whether or not the witnesses’ names and signatures can still be read. If the signatures can still be read, the will dated November 2012 will be admitted into probate.30 Even if it requires closer examination to properly read the signatures, the will of 2012 will be valid and admitted to probate. For example, the court permitted a will in which a magnifying glass was required to read words that had been obliterated.31 In another case a will was upheld where the obliterated word could only be read with the will held up against a light.32 Therefore even if the signatures cannot be read without closer scrutiny, the will of 2012 will be valid and will revoke the will of 1997. Terri’s will divided her estate equally between her mother and her children. Terri’s children died in the car accident with her and the question is whether or not parts of her estate could have passed to her children in such circumstances and if now whether or not there was a contingency bequest should her children die before her. Thus the doctrine of lapses may arise. The doctrine of lapses arises where a gift fails because of the failure of a contingency or for want of an heir.33 In such a case, the failed gift will usually fall to the rest, residue of the testator’s estate if the will contains a clause to that effect.34 Such a clause will usually require that any property not disposed of in the will, is to devolve to the rest, residue of the testator’s estate with instructions as to how that property should be disposed of. If no such clause is contained in the will, the property will be distributed according to the rules of intestacy pursuant to the Administration of Estates Act 1925. By virtue of the rules of intestacy, the property undisposed of in will passes to the next-of-kin which in this case is Terri’s husband John since she has not yet divorced him.35 Since Terri’s children died in the car accident with her, there is a failure of heirs, and unless there is a residuary clause, John will inherit Terri’s estate and since John has no will, his estate will devolve under the rules of intestacy. Since John will die a widower, his next of kin should be his children, but his children also died before him. Thus the next-of-kin in John’s case would be his grandchild (issue), the child of his 21 year old child. If John dies without leaving an issue, his surviving children will inherit his estate. However, if Terri’s will is invalidated or her disposition fails for want of an heir and is passed pursuant to the rules of intestacy, John will not automatically inherit her estate.36 Section 46(2A) provides as follows: Where the intestate’s husband or wife survived the intestate but died before the end of the period of 28 days beginning with the day on which the intestate died, this section shall have effect as respects the intestate as if the husband or wife had not survived the intestate.37 If the doctrine of lapses arises to ensure that Terri’s property is distributed pursuant to the rules of intestacy, John will only be the entitled next-of-kin if he survives Terri by more than 28 days. The doctrine of lapses may not arise in this case. In cases where persons die together or simultaneously, it is always presumed that the younger person died last.38 Thus, since Terri and her three children died simultaneously, it is assumed that the first to die was Terri, followed by her 21 year old, followed by the 17 year old and the 15 year old would be presumed to be the last to die. Thus Terri’s estate would have been divided equally between her three children and her mother. In this regard, Terri’s mother is entitled to one fourth of Terri’s estate, pursuant to the terms and conditions of Terri’s last will and testament of November 2012. Terri’s three children however would have died intestate with each holding one fourth of Terri’s estate. Therefore the rules of intestacy would apply to their estates and how their estates would devolve. There is no evidence that either or the three children were married, although the 21 year old had a child. It can therefore be concluded that the 21 year old child’s next-of-kin is her child and as such is entitled to inherit the 21 year old child’s estate as the issue next in line.39 Since the 17 year old died without leaving issue or a spouse, the next-of-kin is 17 year old child’s parents who would normally take the estate in equal shares. However, since the 17 year old child’s mother died first, the 17 year old dies leaving only one parent (John) who is entitled to inherit the 17 year old child’s estate.40 The 15 year old is in the same position as the 17 year old in that the 15 year old died without issue and without a spouse leaving the next-of-kin John, a surviving parent.41 On the facts of the case for discussion, Terri’s will is partially effective for the disposition of one fourth of her estate. The one fourth of Terri’s estate disposed of as a testamentary disposition is the one fourth that goes to her mother. The remainder of her estate will be disposed of under the rules of intestacy which is permitted by Section 49 of the Administration of Estates Act 1925. Section 49 of the 1925 Act permits its application to “cases of partial intestacy”.42 In the event the second will is rejected on the grounds that it was altered or destroyed by virtue of the lines scored through the witnesses signature, the first will remains effective. The first will left all of her property to John and her three children. In this regard, the rules of intestacy do not apply unless the doctrine of lapses arises to invalidate the disposition of property. However, since the rules of intestacy only apply after it is discovered that there is a failure of heirs or a contingency, Section 46(2A) does not apply. As a result, it does not matter than John may die within 28 days of Terri. Terri’s estate will nonetheless pass to John and her three children since by operation of law, the children are deemed to have survived her and based on the facts of the case for discussion, John was still alive when Terri died. Therefore, if the first will is upheld, Terri’s estate will be divided between John and her three children. As we have already seen, Terri and John’s three children each died before John and pursuant to the rules of intestacy, since neither of John and Terri’s children died leaving a spouse, their estate passes to their issue. Only one of John and Terri’s children died leaving an issue and therefore, the estates of the two children dying without an issue will pass to John. The child of the 21 year old will inherit the share of Terri’s estate that went to the 21 year old.43 When John dies, it is assumed that he will die without a will since none can be found and he is in critical condition. Thus upon John’s death, he will die intestate with the result that the rules of intestacy pursuant to the Administration of Estates Act 1925. John will die without leaving a wife, but will leave behind a grandchild (an issue) the child of his now deceased 21 year old. Thus pursuant to the rules of intestacy, John’s grandchild is his next-of-kin and is entitled to inherit all of John’s estate.44 Had it not been for John’s grandchild, his next-of-kin would have been his surviving parents, failing which, the next-of-kin would have been any surviving siblings John may have had.45 It would appear that the most favourable outcome with respect to Terri’s estate hinges on the second will being valid. It is through the second will that John is unable to take most of Terri’s estate as Terri’s mother is entitled to one fourth of the estate and Terri’s grandchild is entitled to another one fourth share of Terri’s estate. However, with the first will, John is entitled to three fourths of Terri’s estate by virtue of the rules of intestacy applying to the disposition of the parts of her estates going to her 15 and 17 year olds and the fact that the first will also leaves John a part of Terri’s estate. Regardless, the fact that John does not leave a will, the rules of intestacy operate to ensure that all of the property that John owns himself and inherits as a result of Terri’s death will devolve to their grandchild who is the sole surviving issue. Bibliography Administration of Estates Act 1925. Barlow, J. S.; King, L. C. and King, A. G. (1990). Wills, Administration and Taxation: A Practical Guide. London, UK: Sweet and Maxwell. Carroll, J. and McDermott, J. (November 2010). “Ancillary Relief: Should I Stay or Should I Go?” Family Law Journal, 12-15. Children Act 1989. Family Law Act 1996 (As Amended by the Domestic Violence, Crime and Victims Act 2004). Ffinch v Combe ]1894] P 191. Harpum, C.; Bridge, S. and Dixon, M. (2012). Megarry & Wade: The Law of Real Property. London, UK: Sweet and Maxwell. H v H (Financial Provision: Special Contribution) [2002] 2 FLR 1021. Police and Criminal Evidence Act 1984. Matrimonial Causes Act 1973. Miller v Miller; McFarlance v McFarlance[2006] UKHL 24. Norris v Norris [2003] 1 FLR 1142. Re Hamer’s Estate [1943] 113 LJP 31. Re Ibbetson [1939] 2 Curt 337. Vaughan v Vaughan [1973] 1 WLR 1159. White v White [2002] 2 FLR 981. Wills Act 1837. Read More