Note that the case studies mentioned in this blog have been anonymised and particular details changed so as to avoid any chance of recognition or attribution.
THE FACTS
Andrew and Samantha faced major conflict following their emotional separation and the instigation of divorce proceedings by Andrew. The proceedings, brought on the basis of Samantha's admitted affair with a friend of the family, were not resisted by Samantha. Whether by choice or because of advice from solicitors, neither Andrew or Samantha wished to leave the matrimonial home in which the three children of the family, Jennifer (6), Antonia (5) and Toby (3) had lived with both parents. Fortunately their home was sufficiently spacious to allow this, but naturally it resulted in family tension which clearly affected the children.
It was evident that the family home had to be sold. Whilst both Andrew and Samantha worked, such was the mortgage on the house that neither could realistically afford to keep it without financial assistance from the other. Samantha was the highest earner, and in effect held the purse strings. After months of impasse, she gave notice that she would commence financial remedy proceedings in which she would seek an order for sale of the home. She also issued proceedings asking the court to determine that the children should live with her.
Samantha's aim was to re-locate to an area nearer her mother-in law's home (with whom she kept a good relationship) and which fortunately would not result in a change of schools. She sourced details of properties to buy and presented a convincing case to support the viability of the move. Andrew was resistant to a move from the matrimonial home. Whilst the mortgage was high, he considered that it was an affordable home should Samantha make appropriate financial provision under the Child Support Act towards the children, who he contended should live with him.
Over the children's lifetime, both Andrew and Samantha had shared child care, and unusually, Andrew had taken an equal role in home care, including washing, cleaning and household organisation. The fact of shared care created significant risks for them both should they continue with court proceedings to seek an order for sole care of the children. A judge was likely to find that historically neither parent had been a principal carer and that both parents could provide a similar level of care for the children. It was, in effect, a shared care arrangement. So which way was a judge likely to go? There were no compelling reasons for CAFCASS to be involved. The children were on the young side for their wishes and feelings to be determined, and if expressed, they would not be determinative of the outcome. The judge would have to hear from both parents and come to a finely balanced conclusion concerning residence.
Both Andrew and Samantha worked full time. Child care was provided through four channels: pre and post school support for Jennifer and Antonia, nursery school for Toby, paid child care for all three children when necessary, and importantly free child care from Andrew's mother Sheila and her partner David. Both were retired, but fit, well able and willing to be dynamically involved with 'their grandchildren'.
Each fearful of the risks of a court decision, Andrew and Samantha agreed that they would seek facilitation with 'Divorce Without Pain'.
THE ISSUES
For Andrew and Samantha, the issues were:
1. With whom should the children reside?
2. What contact arrangements should be in place for the other parent?
3. How was such an arrangement to be managed?
4. Should the matrimonial home be sold?
5. If it was sold, how should the proceeds of sale be split?
THE FACILITATION
By the time 'Divorce Without Pain' were involved, the working relationship between Andrew and Samantha was at an all-time low. Both were distrustful of the other, and following rather acrimonious solicitors' letters, they were unable to communicate. They had arrived at a stage where child care duties were being apportioned, but the arrangement was far from smooth. Neither wanted to attend a joint mediation meeting - they simply wanted to procure the best outcome without going to court.
Accordingly, both had separate appointments with the same facilitator to discuss the issues. The meetings were relaxed and informative, the facilitator being asked to share experience and to take a proactive role. The facilitator took the view that if the issue of housing could be resolved, the remaining options for child care would be simplified. On the respective incomes, taking into account a proper forecast of outgoings, it was apparent that Andrew's wish to retain their home was impossible. A court would have required a sale with equity release to both parties. This was a difficult decision for Andrew, but one which he realised was inevitable when faced with reality-checking the figures. Whilst Samantha earned more than Andrew, the difference in earning capacity was unlikely to result in either a smaller share of equity or spousal maintenance. The only factor that may have resulted in different shares of capital would have been an unmet obligation on one parent to provide a principal home for the children.
Having negotiated the hurdle of selling the home, it was clear that both parties would need their own accommodation. Mindful of the risks of moving away from the catchment area of the school and nursery, both Andrew and Samantha concluded that they would each seek to buy a smaller property in the locality. There was sufficient equity for this to happen, assuming they chose with care and took older properties. The facilitator helped each to identify a budget for purchase and to collaborate on marketing the existing home. Special interim arrangements were put in place should either party be unable to match an agreed completion date.
On the basis that neither Andrew or Samantha were confident that they could obtain sole residence of the children, a shared residence arrangement was facilitated under which the children spent broadly equal amounts of time with each parent in that parent's new home. The arrangement was skilfully conceived - simple to understand and operate, giving both parents time with the children alternate weekends, and reducing the hand-over meetings. In the course of the facilitation it became clear that Samantha and Andrew's mother Sheila could work together, and so it was arranged that all hand-overs that did not occur after school would take place at Sheila and David's home, reducing the emotional pressure on the parties. Samantha and Sheila were able to agree other arrangements concerning the continuation of child care, and Sheila agreed to take the communication role between the parties.
OUTCOME
Both Andrew and Samantha considered the arrangement to be a success. They felt that this was an option that would not have been open to them had they continued with a court case. Both were aware that they had made compromises of their expectations, but valued the consequence of this from the children's point of view. The total cost to each party was £1,500. In contrast, this level of expenditure would not have taken the parties to a first appointment in financial remedy proceedings. A loss for the lawyers, but a win for Andrew, Samantha, Sheila, David and the children Jennifer, Antonia and Toby.
No comments:
Post a Comment