Divorce update

Christmas contact

Christmas is fast approaching. Nurseries and schools will be closing shortly for several weeks making Christmas holiday contact one of the main issues being mediated at the moment at Family Mediation In Action (FAMIA).

Below are some of the factors and common topics that are raised and explored with our clients to reach agreement for Christmas contact between our clients and their children.

1. Telling the children. If this is the first year that the parents are separated, how will the separation be explained to the children before contact issues are resolved?

2. How old are the children? Infants and toddlers compared to teenagers are going to need different lengths and frequencies of contact that need to be considered. When the children get older should there be trigger points for reviewing the contact schedule over Christmas? e.g. after a year.

3. How would the children like contact to be over Christmas? The parents need to decide the final contact arrangements but it is important when the children are old enough to find out their views. The children can also be part of the mediation process if both parents consent to this. Everything said to the mediator will remain confidential apart from what the children want to be passed back to the parents. The welfare and wishes of the children is of central concern to the court. We try and get both parents to keep this at the forefront of their minds while mediating.

4. Other relatives. What are the grandparents' and other relatives views for contact who may want to see their grandchildren over the Christmas period?

5. Travelling abroad. If one parent is to travel abroad, ensure that the other parent will have a telephone number or contact details so that they can have telephone or even Skype contact on Christmas day.

6. Alternate Christmas contact. A lot of families now like to spend Christmas abroad. The clients therefore are often happy to alternate who has contact with the children each year.

7. Keeping the other parent informed. The Christmas period can have a lot of festive events, religious ceremonies and activities. We try and get the parents to agree how far in advance they should communicate with each other so that if there is a clash of events a compromise can be reached.

8. Breaking the Christmas period into slots of days. Sometimes one parent has the children for contact on Christmas Eve and Boxing Day while the other parent has contact Christmas Day and other days. Or one parent has contact over Christmas and the other parent then has contact over New Year. This then rotates yearly.

9. Having Christmas together. In some mediation agreements (memorandum of understanding) we have prepared, the resident parent has wanted it documented that the non-resident parent can spend Christmas Day at the resident parent's house so that both parents have contact with their children on Christmas Day when the presents are opened.

10. Morning and evening contact on Christmas Day. One parent has contact with the children in the morning of Christmas Day and the other parent has contact in the afternoon.

11. Shared Christmas contact. If there is a shared residence order in place and contact cannot be divided 50/50 over the festive period, it is explored whether there are other points in the year where more contact can be granted so that there is a balance of contact between both of them.

12. Good communication between parents. Is this best done by email, phone or face to face where there is an acceptance by both parents that over this busy period flexibility is needed? Good communication can also work if the parents agree to arrange a neutral point for contact handovers, agree an agenda of items in advance, looking to the future rather than to the past, and agreeing to a time limit for discussions so that everything talked about is focused.

13. Keeping the other parent informed. If there is important information that the other parent needs to know '“ for example new dietary needs or their general routine '“ write this down and keep the other parent informed so that the child's transition is not disrupted between parents.

14. Business partnership. If communication is strained and difficult can you liaise with your former partner as you would with a work colleague? And if things do become heated find a way to calm down before continuing discussions?

15. Passport and travel. Discussions centre on giving consent for passport applications, and, if the children are travelling abroad, on consent being given for how long they agree to them being outside of the jurisdiction. If there are child abduction or relocation concerns we always recommend both parties seek legal advice from their respective solicitors.

Finally we tell both clients to make sure that they have spare batteries to hand for Figit (a robot that can dance and tell jokes), which is predicted to be the must-have Christmas toy of 2011.

Solicitor-mediator collaboration

At a recent mediation seminar in Twickenham there was a Q&A session to an expert panel at which someone asked why a mediator should be instructed instead of a solicitor. The answer given by a mediator was that mediators and solicitors should both be instructed and work together collaboratively if the situation is suitable for mediation.

Mediation has some advantages over litigation because in the mediation process communication is maintained by the clients working together in the same room, which is important where there are young children involved as both parents will need to communicate directly with each other for a long time after their separation and after the consent order has been sealed.

There is a positive energy in the room when mediating with parties both keen to shape a contact agreement that fits around their work schedules and commitments. A court order may not always reflect this. Also, in the current financial climate, clients who do not have a lot of resources do not always have the funds to litigate through several hearings.

If the matter of Christmas contact goes to court, the hearing date may be listed sometimes after several weeks by which time Christmas may have come and gone, or, if the plan was to go abroad, travel will be a lot more expensive, whereas usually mediators can see clients within a matter of days.

Solicitors obviously do have the advantage over mediators on technical legal issues as mediators cannot advise the client on his or her rights, which can be very important if there is a power imbalance between the parties, e.g. if there are child abduction or relocation concerns or if one party has a better understanding of the situation than the other.

The mediation process is also voluntary, so, if one party does decide to opt out of mediation or not attend, going to court is really the only way left to reach a resolution for a Christmas contact dispute.

Post-Radmacher prenup

At the High Court on 3 November 2011, Mr Justice Moor considered the merits of a French prenuptial agreement and delivered judgment in Z v Z (No 2) [2011] EWHC 2878 (Fam). This is thought to be the first reported post-Radmacher prenuptial agreement case.

The prenup was signed by the parties in France in 1994 in the presence of two notaries, days before the couple's marriage in France. The agreement excluded the sharing of the couple's wealth on separation. They moved together to live in England in August 2007.

The wife was aged 50 and the husband was 53. The marriage duration was 14 years with four years of cohabitation before the marriage. The couple had three children aged 14, 12 and nine.

In February 2008 there was a trial separation for a period of three months. The husband signed a letter to the wife before leaving in which he agreed that he would not seek to rely on the prenuptial agreement if he commenced divorce proceedings and that if he did commence legal proceedings he would agree to share the couple's assets.

The assets in this case were valued at £15m. The wife had over £1m-worth of assets in her name while the husband was a big earner.

The wife started divorce proceedings in London in 2008. The husband contested the divorce proceedings in Paris where he challenged the jurisdiction of the High Court. Ryder J considered this issue in 2009 and ruled in favour of the wife.

At the four-day trial in October 2011, the husband put forward a case that the prenup should exclude the sharing principle and that the award to the wife should be made on a 'needs' basis.

The husband initially made an offer of 35 per cent of the assets to the wife, which was not accepted.

The wife argued that the prenup was not entered into freely and said that she had been induced to enter into it. She also added that she had given up her job, had children and came to the UK with her husband when the marriage was not going well.

The wife was seeking 50 per cent of the assets and argued that if her claim was to be dealt with on a 'needs' basis she should still receive 50 per cent, which amounted to £7.5m. The judge did not accept the wife's arguments and upheld the prenuptial agreement. The terms of the prenup could not be varied by the husband's letter as legal proceedings had by then been initiated by the wife. The wife was awarded 40 per cent of the assets, amounting to £6.03m, including her own assets. The award was made for the wife on a 'needs' basis rather than on a 'sharing' basis, as the sharing of the assets was not provided for in the prenup.

Income needs were assessed at £100,000 per year for the wife and £75,000 per year for the children, which were determined according to English law. The wife was awarded a lump sum of £2.28m.

Radmacher v Granatino [2010] UKSC 42 gave prenuptial agreements 'decisive weight' and Z v Z (No 2) does not change the current law.

In 2012, the Law Commission is due to report on whether there should be a change to the law on the recognition of prenuptial agreements.