Family Law - Mesher Orders - Essay Example

Law Assignment Dear Mrs Lee: This has reference to the matter of divorce we discussed earlier. You have expressed your concerns about the financialsurvival of yourself and your children in the event of a divorce from your husband. After a review of your case, I would like to assure you that there is no need to worry about how you will survive, because the provisions for ancillary relief that exist within the framework of the law may allow you to not only retain possession of the property you and your husband currently inhabit on Rush Gray Road, but also to receive periodic maintenance payments from your husband. Alternatively, you may also be eligible for a lump sum payment and an equitable distribution of assets on a mathematical basis, although the Court is likely to take into consideration the fact that your husband is the legal titleholder of the property you now live in. I present below, for your information, an assessment of ancillary relief that you may be eligible for in the event that you choose to divorce your husband. Firstly, I would like to bring to your notice that one of the objectives of modern law in the case of a breakdown of a marriage between two parties is to achieve a clean break and “encourage each to put the past behind …. and to begin a new life which is not overshadowed by the relationship which has broken down.”1 This would appear to be the best solution and perhaps in your case, after your discovery of your husband’s adultery, you may be keen to pursue a clean break from him and look for a financial settlement that would ensure such an end. However, in your case, there are two small children involved2, who are only six and two years old. The welfare of your children is at stake so the Court may not necessarily allow a clean break from your husband, since your children need continued maintenance and your husband, as the earning member of the family, will need to contribute monies towards their continued maintenance, as well as providing for your upkeep, especially if your primary function is that of taking care of your children. As a result, your husband as the earning parent will be responsible for paying maintenance to you for looking after the children3. In some instances the Courts have not allowed maintenance when a pressing need does not exist or where the parties are only cohabiting4, as was the case with your husband and Sandra Quartro. However in your case, since you are married and are employed full time in taking care of the children who are very small, you may be eligible for maintenance payments. It also appears likely that since your children are so small, you may not be able to return to work for a few more years. A divorce places a woman at a considerable financial disadvantage, especially since she may be unemployed like yourself, and may also need to take care of children, so you will most likely be eligible to receive maintenance payments on behalf of your children. You may also be eligible for the passage of a Mesher Order5 by the Court, in so far as settlement of the property at Rush Gray Road is concerned. Despite the fact that this property is solely in your husband’s name, there is a good chance that you may be designated as the custodial parent6 of the children, since you are their primary caretaker. As a custodial parent, with the passage of a Mesher order, you will be allowed to live in the home with them until they reach the age of 18 years.7 This order will also entitle you to receive periodic payments from your husband, who is the father of the children, in order to provide for their upkeep and care, and to maintain and care for the property itself. However, please bear in mind that this arrangement which is imposed by a Mesher order cannot stand if you should choose to re-marry or cohabit with another man8 in the interim until your children reach the age of 18 years. Otherwise, should you choose not to marry or cohabit with another man, these Mesher orders, once issued, generally cannot be varied9 and they will hold good until your children reach the age of 18, thereby entitling you to live in the house and continue to receive maintenance payments.10 You are entitled to claim ancillary relief based upon your spouse’s current income, earning capacity and financial resources, as well as on the basis of the financial needs and obligations of yourself and your children, to the extent to which you have contributed to the relationship during these past years.11 The Court will allow for the distribution of assets and assess the extent of periodic maintenance payments after taking into account “all the circumstances of the case.”12 There are a list of criteria that have been specified through statutes13, which the Courts are obligated to take into account when passing an order on ancillary relief. Some of these are the income and earning capacity of both the parties, which will also take into account your future earning power as well as your husband’s. The Courts will also be required to take into consideration property and financial resources which each party has, which of course will include the house you live in, and will also include those resources that may be possessed in the near future. Therefore this may well take into account such aspects as the possible sale of the house by your husband for a sum of 412K pounds or more, bearing in mind the steady property appreciation, or you getting a job and your husband’s potential for promotion. Maintenance payments issued in conjunction with Mesher orders have been increasingly transferred into tangible assets,14 so they do provide potential further advantages for you, as the wife, to save the unused portion of those maintenance payments for your own use. Should your conduct be suspect in any way or of the Court deems it to be geared towards the of your husband’s assets, they may not grant relief.15 I must also point out that there have been cases where possession of the matrimonial home has meant that maintenance payments are reduced or extinguished.16 Therefore, in the event that a Mesher Order is passed in this case which will entitle you to live in the matrimonial home, it may also be counterbalanced by a reduction in the amount of the maintenance payment that the Courts may allow to you. You must also take into consideration the fact that the assets involved in this case are substantial, i.e, your husband’s income is 60K pounds a year and the value of the property is 412K pounds. Moreover, the property is solely in your husband’s name. While the question of legal title may not be an issue barring you from continuing to live in the home if the Court issues a Mesher order, however in so far as determination of periodic payments is concerned, the Court may also take into account the fact that you are educated and capable of earning an income17 since you were also employed earlier as a teacher and the monthly payments may be reduced accordingly. I must also clarify that while the issue of a Mesher order may entitle you to live in the property until your children reach the age of 18 years, this does not mean that you will automatically be eligible for a share in your husband’s assets18, at least those which are solely in his name like the property on Gray Road, if he should choose to sell it, for example – because he has acquired it before the marriage. I would also like to bring to your notice the fact that since the majority of child support is paid by the father, this raises the issue of financial fairness to him since in the present day, most women are also working. Fathers also believe that they are at a disadvantage when it comes to court orders19. There is a chance that should you start working again as a school teacher and earning a salary, your husband will be able to apply for a reduction in the maintenance payments that will be due to you. Alternatively, instead of a Mesher order allowing you to live in the matrimonial property, the Court may also issue a lump sum order, requiring your husband to pay you periodic payments and an additional lump sum amount based upon the value of the asset he possesses, i.e, the property. It is possible that the Courts may decide to adopt this option and assign you such a lump sum payment as a divorce settlement. Lastly I would like to add that the Courts have been vested with a great deal of “discretionary powers…[to]…. redistribute assets” which are almost limitless.20 Bearing in mind your contribution to the marriage for eight years, in taking care of the children, this aspect will be taken into account by the Court in ensuring that fairness is done to you, especially since you are the wronged party in this case due to your husband’s adulterous relationship. The position in law in so far as this aspect is concerned is that Courts are asked to examine “the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contributions by looking after the home or caring for the family.”21 Since you have given up your wage earning position as a teacher in order to take care of your husband’s home and your children, the Courts will also take this into account, since “there should no bias in favor of the money earner and against the home maker and child carer”.22 Therefore in the event the Court orders a lump sum payment to you, it is also likely that there will be an equitable distribution of assets on a mathematical basis,23 which may bring you some share in the matrimonial home. If your husband sells the home and a Mesher order s not possible, then it is possible that the Courts may distribute the sum of 350K pounds which will accrue after repayment of the mortgage and sale of the house, on a proportionate basis between you and your husband. While the lion’s share may go to him, the Courts are likely to take into consideration your contribution for these eight years and arrive at some mathematical ratio for distribution of the sale proceeds. This sets out the kind of relief that you can expect in this case. I shall await your direction on how you would wish me to proceed further in this case. Thanking you, Solicitor. Ans 2: Dear Mr, Lee: You have indicated to me that you are the father of an illegitimate child named Harold, who has been born to Ms. Quartro. Had you been married to Ms Quartro, you would have automatically acquired parental responsibility for the child. However, as the situation stands now, your rights and obligations will be limited. Moreover, your rights and role in your son Harold’s life may also be limited in the event that Ms Quartro chooses to marry or cohabit with another man, since said man may be able to file for a special guardianship order or a parental responsibility order if Ms Quartro should make a request to the Court. This would then lead to disputes on paternity later on, which would need to be resolved by the Courts, and you would have to file an application for a declaration that you are the father of the child24, following which the Court will carry out the necessary blood tests, etc. In view of the foregoing, it would be advisable for you to declare your parentage at the outset, and have your surname included on Harold’s birth certificate. There are legal provisions that allow you to apply to have your paternity established, to be identified as the child’s father so that he can have your surname. You may be able to apply to the “High Court, a county court or a Magistrate’s Court for a declaration as to whether or not a person named in the application [yourself] is the parent of another person so named”25 [Harold]. The Court will then proceed to examine your application and if your paternity is successfully established, through a declaration by Ms Quartro as well as necessary DNA tests, etc then in accordance with policy, the Court must make a declaration in respect of the same. The Court will then notify the Registrar General about the declaration of parentage. The Registrar General is the one who has the discretion to authorize the registration of the birth, on the basis of the declaration made by the court.26 Since in this case the birth is also an illegitimate one, there is also an alternate process that is available under the law.27 To go through this procedure, the mother of the child, Ms. Quartro may make a formal written request together with a Statutory declaration affirming your parentage, which may then be furnished at the office of Births in order to enter the child’s name in the Register of Births. This will have to be supplemented with a joint request by both parents for entering the father’s name in the Register. Additionally, a Parental responsibility Agreement must also be signed by both parents28 in the presence of a Justice of the Peace, by which both parents jointly agree to allow the father to have parental responsibility for the child. Alternatively, since you and Ms Quartro are not married, but you wish to assume parental responsibility for the child so that you will have the right to make important decisions in the child’s behalf, you may consider applying for a Parental responsibility Order. It is not necessary to approach the court for such an order, if you and Ms Quarto agree then you may both enter into a Parental responsibility Contract, which is akin to a kind of contract that you will have parental responsibility for the child. There is a form that must be signed for this purpose, in the presence of the Justice of peace as indicated above, which must then be sent to the Principal registry of the High Court. After it is registered there, it will become effective and you will be registered as the parent of the child and will be entitled to have your name entered as the child’s surname on the birth certificate. Any of these measures I have recommended above can be used to effectively establish your parentage. Of course, once the papers are filed in the Court, it will be necessary for you to go through the relevant blood tests and/or DNA tests so that paternity can be confirmed, after which your surname can easily be included on the child’s birth certificate. I trust this clarifies things for you and I await your instructions in the matter. Thanking you, Solicitor. Bibliography Douglas, Gillian, 2005 “Introduction to Family Law”(2nd edn) Oxford University Press Herring, Jonathan, 2004. “Family Law” Longman http://www.lawpack.co.uk/who_gets_the_children.asp Legislation cited: Births and deaths registration Act of 1953 Children Act of 1989 Child Support Act of 1991 Family Law Act of 1956 Family Law Act of 1995 Family Law (Divorce) Act of 1996 Matrimonial Causes Act of 1973 Cases cited: Browne v Pritchard (1975) 3 All ER 721 Carson v Carson (1983) 1 All ER 478 C v C (Financial provision) (1989) 1 FLR 11 Chaterjee v Chaterjee (1976) 1 All ER 719 Clark v Clark (1999) 2 FLR 498 Foley v Foley (1981) 2 All ER 857 Hanlon v Hanlon (1978) 2 All ER 889 K v K (Financial provision:Conduct) (1990) 2 FLR 225 Kokosinki v Kokosinki (1980) 1 All ER 1006 Martin v Martin (1977) 3 All ER 762 Mesher v Mesher (1980) 1 All ER 126 Minton v Minton (1979) AC 593 Suter v Suter & Jones [1987] 2 FLR 232 Thomas v Thomas (1995) 2 FLR 668 White v White, (2000) 2 FLR 983 Read More