Domestic abuse and divorce

Jolie Pitt domestic abuse and divorce

Domestic abuse and divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, and in which Jolie has made allegations of abuse against Pitt, today solicitor Heather Lucy looks at the issue of domestic abuse and divorce.

Domestic abuse is, sadly, a perennial issue in interpersonal relationships. When someone has found the opportunity, means, and assistance to leave a marriage that is characterised by domestic abuse, they often ask themselves the question “what impact will my ex partner’s behaviour have on our financial settlement?”

Funding

Legal Aid is not usually available for matters arising on the breakdown of a relationship, including the divorce proceedings and financial remedy proceedings, but, in a case where there has been domestic abuse, the victim may be eligible to receive public funding. It should be noted that this is a means-tested award and the applicant will need to show some evidence of their abuse at the hands of their ex-partner. A lawyer should be able to ascertain whether a client is likely to receive financial assistance and help them make the necessary applications.

Finances – the arena

Resolving the matter of the family finances on divorce is something that will likely weigh heavily on any separating couple’s minds. Separating spouses are encouraged by the courts to use means of Alternative Dispute Resolution (ADR) before resorting to an application to the court but this is not appropriate in all circumstances. One such circumstance is where there has been domestic abuse; the courts do not consider it appropriate to make attempting ADR a pre-requisite of any application for financial remedy in this case.

Finances – the award

If a separating couple cannot decide on how their assets should be divided, they will most likely ask the court to make a decision for them. When the court looks at how the parties’ assets should be split, they will need to consider a list of factors including the parties’ relative ages and earning capacities, the length of the marriage, and whether there are children of the family. One of the other factors the court can consider is the conduct of each party.

Conduct is very rarely considered to be sufficient to change the outcome of a case. This is, in part, because the court does not seek to apportion blame for the breakdown of a relationship. The court, in reality, only takes into account conduct that it would be ‘inequitable to disregard’. So, what exactly does that mean? In short, it is unlikely to include domestic abuse.

Family lawyers will refer to this as the ‘gasp factor’ which shows that the behaviour of the perpetrating party must be enough to warrant shock – however, bear in mind this is not a precise legal test.

When coming to a final award, the court must have regard to meeting a parties’ needs. Interestingly, the court can choose to penalise a party for their conduct to an extent that their needs are not met but this is a rare situation indeed.

In short

Domestic abuse, unless it is of the most extreme nature, is unlikely to impact a court’s decision on how the matrimonial assets should be divided. Parties should be made aware of this at the outset of their case as not to increase litigation costs or protract the proceedings bringing an end to a particularly unhappy marriage.

At McAlister Family Law we can give guidance on what the courts may take into account, but the behaviour is generally thought to be extreme to the point that the courts feel that it would be inequitable to ignore the behaviour.  Unfortunately, the vast majority of cases that have an element of abusive or controlling behaviour do not impact on the financial settlement that the court would order or approve.

 

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

Changing your children’s last name after divorce

Jolie Pitt divorce

Changing your children’s last name after divorce

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, it is reported that the couple’s son Maddox doesn’t use Pitt as his last name on documents that aren’t legal, using Jolie instead – and wants to make this name change legal.  Solicitor George Wilson looks at the options available in this country, and considers the wider implications of such a decision.

It is a matter of record that Maddox Jolie-Pitt has a troubled relationship with his father, especially after an altercation during a private jet flight to Los Angeles, five years ago. Although Maddox wants to drop his father’s name and go from Jolie-Pitt to Jolie, it’s reported that his mother doesn’t support this. What would be the situation here?

Changing your name by deed poll

Under English law, if you are over the age of 16 you can change your name by deed poll, and you do not usually need your parents’ consent to do this. Your parents also cannot change your name for you without your consent.

However, there are some exceptions to the above. If you are subject to

* A ‘Live with order’ whether that is a Child Arrangements Order or Residence Order in England, Wales, or Northern Island

* A Special Guardianship Order in England and Wales

* A Care Order (or interim Care Order) in England, Wales, or Northern Island

* Any other court order which says that your name cannot be changed

If one of the four instances outlined above applies to you, then you’ll need the consent from everyone who has Parental Responsibility  for you, for as long as the court order remains in force. The order might be drafted so that it ends on a specific date. If not, then it’s safe to assume that it will come to an end on your 18th birthday.

If one of the four orders outlined above applies to you, and someone with parental responsibility refuses to give their consent, then you would need to apply for an Order of the Court allowing the change.

What about changing a child’s name?

Anyone under the age of 16 is, in law, a “child”, which means whoever has parental responsibility for the child would have to change the name by deed poll on the child’s behalf. To change the name of a child resident in England, Wales, or Northern Ireland, or overseas, there must be consent from everyone with parental responsibility, and that consent must be in writing.

What happens if the other parent refuses consent?

If only one person with parental responsibility wants to change the child’s name, and everyone else who has parental responsibility for the child won’t consent, then the person who does want to change the name can apply to the Court for a Specific Issue Order.

Usually, unless the Court believes that the link to a family name is better broken, they will be reluctant to take away the name of one of the parents. Courts tend to regard a child’s surname as something fundamental, and an important part of their identity.  Even if one parent has had no contact for many years, it’s still seen as important for a child to have the absent parent’s surname, because it may be the last remaining link to them.

That being said, there are very often more important things to consider than the continuation of the link of identity between a child and a parent.

It is worth noting that the closer the child is to the age of 16, the more weight the court will likely give that child’s wishes and feelings.

What if no one gives consent to change your name?

If you are under 16 years of age, want to change your name, but none of the people with parental responsibility for you will consent to it, then you can apply to the court yourself, again for a Specific Issue Order.

You will need to show the Court that you have tried to work out any differences between you and those with parental responsibility before you made the application. You’ll also need to get the Court’s permission to make the application as you’re a child. This is called “Leave of the Court”, and you have to apply for permission first, before the Court would hear your application. The older you are, the more likely the Court are to give their permission to make the application for a Specific Issue Order and you’ll have to prove that you have a sufficient understanding of what you are applying for.

Think carefully before making any decision

Maddox Jolie-Pitt wants to change his surname, but his mother disagrees with this. If he goes ahead however, it’s likely Maddox’s brothers and sisters will have a different surname and they may be unhappy with this. There are wider implications which need to be considered thoroughly.  A divorce and various disputes that are still going on many years later is without question going to put a strain on any family. This is why all factors need to be considered carefully and we at McAlister Family Law are here to help should any of these issues affect you and your family.

 

If you are affected by any of the issues raised here, please get in touch today.

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