Author: Andrew Nellist

Following the untimely death of Michael Jackson it emerged that he had, in his Will, nominated his mother as guardian for his children. In the event that his mother had predeceased him Diana Ross was nominated in her place.

In England and Wales the appointment of Guardians and the rights they have are governed by Section 5 of the Children Act 1989.  A parent with Parental Responsibility may appoint a Guardian by Will or by a document which they date and sign and which provides that the appointment only takes effect on their death.

A child’s mother acquires Parental Responsibility on the birth of their child which can only be removed in specific circumstances for example if the child is adopted. The husband of the mother at the time of the child’s birth automatically acquires Parental Responsibility as does a father named on a birth certificate after 1st December 2003. This applies even in situations where the child was born as a result of Artificial Insemination by a Donor (AID).

The appointment of a Guardian under a Will only takes effect if:-

(i) The Appointer has a sole residence order in their favour at the time of their death; or
(ii) No parent with parental responsibility survived the Appointer.

Even if these conditions are not fulfilled the Appointee will have parental responsibility by virtue of the nomination under the Will and will be entitled to apply to the Court to be appointed as the Guardian. 

Where there was a sole Residence Order in favour of the Appointer at the time of their death and there is a surviving parent who either does nor does not have parental responsibility that person can seek to have the appointment of the Guardian revoked.

Thus had Michael Jackson and his children been resident in England at the time of his death then unless there was a sole Residence Order in his favour at the time of his death his mother would have to have made an application to the Court to be appointed Guardian of his children.  In the absence of such an application the children would have to be returned to their mothers to care for them provided that they as surviving parents still had parental responsibility.

Author: Andrew Nellist

Family Lawyers had been waiting intently for the judgment in the case of Myerson v Myerson. The Court of Appeal was asked to consider whether significant changes in the value of matrimonial assets, as a consequence of the economic downturn, should be seen as a reason for the court to tear up a Clean Break Financial Order and deal with the financial matters afresh.

In the case of Myerson the credit crunch had led to a very significant reduction in the value of shares which had been retained by the husband.

In finding against the husband, the Court of Appeal made it very clear that reduction in value of assets, due to the credit crunch, was not an unforeseeable new event (a Barder type event), that should lead to the Order being set aside.

As things now stand, the order provides for Mrs Myerson to receive more than 100% of the matrimonial assets. However, some of the lump sum payment due to be paid to the wife by instalments has yet to be paid and in a further hearing later this year the Court is due to consider whether these payments can be varied downwards.

Author: Andrew Nellist

I’m all too aware that a large number of people in this country believe that a man and woman living together have legal rights arising purely as a consequence of their cohabitation.  Apparently the actual number is reducing but is still in excess of 50% even though the reality is that cohabitation itself does not bestow any legal rights.

Lord Lester the Liberal Democrat peer has been spearheading a campaign for a change in the law.  The latest development in the ‘Living Together’ campaign saw the publication in September by Resolution (the Solicitors Family Law Association) of a consultation paper with a view to a Bill being introduced in Parliament before the end of 2008.  (more…)

Author: Andrew Nellist

Since 2005 the divorce rate in England and Wales has fallen; in 2007 there were only 11.9 divorces for every 1000 married people; this was the lowest rate of divorce since 1981.

There has been much speculation as to the reason for the fall. A recent article in The Times suggested that one of the principle reasons for the drop in the divorce rate was that marriage is no longer a social duty and that those that get married really mean it. Couples tend to live together first so understand each others faults before they marry, and have the maturity to work through any problems they may encounter.

Will the economic uncertainty and in particular the fall in house prices cause the divorce rate to fall further? Are people simply too strapped for cash to divorce? (more…)

Author: Andrew Nellist

Several papers have recently reported a case in which the wife petitioned for divorce on the basis of her husband’s unreasonable behaviour after discovering that his male character in the Internet Virtual World “Second Life” was having sex with a female character controlled by a real life woman. The wife had apparently even gone to the length of hiring an on-line private detective within “Second Life” to investigate the behaviour of the virtual character controlled by her husband. (more…)