February 22nd, 2011
That grabbed your attention!… Sir Elton John and his civil partner David Furnish revealing that they do not know which of them is the biological father of their son Zachary since the pair opted to “both contribute” to the conception. They both undertook a surrogacy programme in America, which allowed them to mix their semen specimens; a process that is currently banned in the UK.
It has also been revealed that on Zachary’s birth certificate Elton is registered as the boy’s father whilst David is named under the mother category. This would certainly indicate that the parties had already applied to have Zachary’s birth certificate re-issued, as would be the norm in ‘gay dad’ surrogacy cases. In these cases the two fathers can apply to be listed as parent 1 and parent 2. The fact that Elton is listed as the father on formal documentation is a clear indication that he is the true biological father of Zachary.
So then, who are the legal parents of a child born through surrogacy?
Under English law, the legal mother of a child born through surrogacy is always at birth, the surrogate mother. This is simply because the law says that the woman who carries the child is the legal mother. If the surrogate is married, and conceived artificially through IVF or artificial insemination at home the legal father at birth is usually the surrogate’s husband.
This means that a potential “new father” does not have automatic claim to legal parenthood unless of course it can be shown that the husband of the surrogate did not consent to the arrangement.
The situation is also the same to surrogate mothers who are in gay relationships. If they are in a civil partnership at the time she conceives her same sex partner will be the child’s second parent to the exclusion of any future intended parent.
In the UK Elton and David would have to apply for a parental order to ensure the future care of Zachary and to reassign parenthood if the surrogacy birth had taken place here. This would be necessary to ensure that the parental status acquired by the surrogate mother was extinguished; thereafter, full parental status and parental responsibility being conferred onto them.
However, Zachary was born to an American surrogate in the US and it is likely that their status as parents in California has already been recognised automatically. Furthermore, it is believed many hundreds of thousands of pounds were exchanged in agreement for the surrogacy that would have been illegal in the UK as the laws surrounding surrogacy operate on a not-for-profit basis. Surrogacy agreements are also unenforceable in the UK. If the surrogate mother had decided after birth that she wanted to keep Zachary then it would have been very difficult for the pair to uphold the agreement, as it is not possible to enter into a legally binding surrogacy agreement here in the UK.
In the very recent English case involving surrogacy CW v NT and another [2011] a couple, who had entered into a surrogacy agreement with a woman who later sought to keep the child, applied for a residence order.The application was rejected and a residence order made in favour of the surrogate mother. The court found that the mother was better able to meet the baby’s emotional needs and that there was a clear attachment between the mother and the daughter such that removing her from her mother’s care would cause a measure of harm.
London divorce lawyers say : “It is no wonder that as a result of the UK’s stringent legal restrictions surrounding surrogacy that Sir Elton and David opted for an international surrogacy agreement.”
However, one final but very important point that we at London Divorce Lawyers want to make clear here is that it is sincerely hoped that full consideration has been given to Zachary’s immigration status as well as Elton and David’s parental status for the care of Zachary in the future if they intend to settle in the UK with him.
If this is the case Elton and David will have to care for him under English Law and in order to bring little Zachary to the UK issues of entry clearance and securing legal status to care for him will be vitally important.
Michael Gregory, Associate
Silverman Sherliker LLP
Tags: Elton John Paternity Zachary
Posted in Children and Divorce, Divorce solicitors London, London Family Lawyers, London Family solicitors, London divorce cases, London divorce lawyers, London divorce news, london divorce solicitors | No Comments »
August 4th, 2010
The old tale of estranged husbands and wives engaged in detective work to discover evidence of hidden assets came to an abrupt end in the Court of Appeal on the 30 July.
The Court of Appeal in the case of Tchenguiz & Others v Imerman ruled that parties can no longer simply help themselves to documents belonging to their ex-partners to use as evidence in divorce proceedings.
Before the Imerman judgement the 1990 case of Hildebrand v Hildebrand set the precedent regarding “self-help” which became known as the Hildebrand Rules that formed the basis on which London divorce solicitors advised their clients regarding accessing documents. It was generally understood that clients were allowed to access documents belonging to the other spouse, whether they were confidential or not, and produce them in court provided no criminal act was undertaken in doing so.
In the case of Imerman the husband shared a work office and computer system with his wife’s brothers and one of the brothers accessed and copied information and documents from the husband’s server in the office. The documents were eventually passed on to the wife’s matrimonial solicitors, which were then disclosed to the husband’s solicitors to be used in ancillary relief proceedings. The husband sought the return of the documents and any copies made as well as an order preventing the wife from using any of the information found within the financial proceedings.
The Court of Appeal ruled that the brother, two IT staff and a solicitor had no right to retain or use material downloaded without the husband’s knowledge. Consequently, there had been a breach of confidentiality and the wife and her solicitors were ordered to return the documents and were restrained from using any information that they may have gained within the course of the ancillary relief proceedings.
This decision has made clear that the court has the power to prevent one spouse from relying upon documents belonging to the other spouse even if those documents were obtained without force.
Of concern to London divorce lawyers advising divorcing spouses will be the principle of full and frank financial disclosure. The Imerman ruling seems to facilitate the possibility of one-party not disclosing information that they should do to the other party within ancillary relief proceedings. The ruling seems to have gone one step too far in favour of confidentiality.
Divorce Solicitors London, London, EC2A 3DR
Tags: Divorce and Business, london divorce solicitors, London Family Lawyers, London Family solicitors
Posted in Divorce Financial Advice, Divorce Financial Settlement Advice, Divorce solicitors London, London Family Lawyers, London Family solicitors, London divorce cases, London divorce lawyers, London divorce news, london divorce solicitors | 1 Comment »
July 22nd, 2010
Last week London Divorce Solicitors discussed what to do when your business is jointly owned by you and your spouse. This week, the topic is about when to start your divorce for people who are in business as self-employed or entrepreneurial managers given the effects of the economic downturn.
The question is “What effect will the divorce have on my business assets?”
We’ve already discussed how business assets can be divided between the parties just like any other family assets, and this often gives rise to the fear that a business might fail financially because of the cost of the divorce and the resulting personal situation of the divorcing parties.
If you are in this position, the chances are that your business is just coming out of financial difficulty caused by the recession. The fear: that having to divide your assets after the bad times will break the back of your business. In London divorce solicitors often speak to self-employed business people who are more prepared to wait for economic recovery in a couple of years’ time, and begin the divorce then, than to begin now.
The fact is, though, that the opposite is true. If you start now, you divide your assets when they are undervalued and depreciated by the effect of the Recession and that way you protect the business growth for the future. If you think you’re on the road to recovery, don’t wait – now is the best time to contact London divorce solicitors if you have family issues that need to be resolved.
If you wait two years, until your business has grown and is more secure, just think what happens if you divorce then. If your turnover has doubled – so potentially does the cost of any buy-out by one party of the interest of the other. This could create your own personal double-dip recession, and send your business into a downward spiral just when everyone else is recovering. And bear in mind that as you recover, you will be building up business obligations as well as profits. If you suddenly lose a large portion of your assets, you have a cash flow nightmare. As the market potential grows, your business potential has suddenly shrunk.
But if you start your divorce now the settlement comes sooner, and your business payout is more reasonable. Less payout means a more manageable cash flow and more potential to cover the gap with a loan at current low interest rates. The best thing is the business can still grow as it would before and after two years you are not missing the settlement money at all.
Better still, the stress of divorce will be behind you and you can enjoy your business growth without having to worry about personal family issues. Here at London Divorce Solicitors we will feel we have done our job if you can get the divorce proceedings out of the way now and concentrate on getting your business back on track and benefit from the economic upturn.
So the answer is, don’t suffer in an unhappy marriage because of the recession. If you are planning to divorce, begin today and protect your business and your sanity!
London Divorce Solicitors, London, EC2A 3DR
Tags: Divorce and Business, london divorce, london divorce solicitors, London Family Lawyers, london family solicitor, London Family solicitors
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July 21st, 2010
London divorce solicitors are considering the legal implications of the scathing comments of Lord Justice Thorpe in the Court of Appeal Golubovich v Golubovich case last week.
This case involved a Kensington-based Russian couple who split up. They had each lodged separate divorce proceedings, one in London and the other in Moscow.
London divorce solicitors often see divorce cases where particularly a foreign wife will rush to issue divorce proceedings in London because London courts tend to favour the wife and tend to award more generous divorce settlements than might be available in the home country.
In this case the wife, Elena, 26, hoped for a more lucrative settlement from the English courts and instructed London divorce solicitors to commence divorce proceedings in London on her behalf. Meanwhile, her wealthy tycoon husband, Ilya, 24, had started proceedings in Russia and actually obtained an order of divorce from a Russian court.
In fact, the Russian husband had obtained two decrees in Moscow to end the marriage. The first was successfully challenged by London divorce lawyers as a forgery and the second originally was dismissed as being too late.
But in last week’s unanimous Court of Appeal judgment, that decision was overturned in the husband’s favour and the second Russian divorce was upheld. The London Court accepted that the couple were entitled to have their divorce settled in England but questioned whether the race between them to have it heard in the court of their preference was an unnecessary drain on the London Courts.
The Court of Appeal lambasted the wasteful use of the English family courts by foreign couples filing for divorce.
In the words of the Court of Appeal:
“They embarked upon a crude race, pitting one jurisdiction against the other and avoiding any judicial appraisal of where the balance of fairness and convenience lay. In these sagas it is commonly seen that one sharp manoeuvre provokes an even worse response,”
Lord Justice Thorpe added: “I question whether there should not be a more stringent allocation of judicial time to cases such as this where the parties have slender connection with our jurisdiction and where the extent of their financial resources permits disproportionate demands on our family justice system.”
“The benefit of cross-border judicial collaboration in children’s cases is now universally recognised,” said Thorpe LJ. “There is every reason to extend this innovation into all areas of international family law.”
In spite of the harsh words of the London Court of Appeal, London divorce solicitors do not expect to see any slow down in the number of foreign-born wives commencing divorce proceedings in London in anticipation of getting better financial terms in the divorce settlement.
London Divorce Solicitors, EC2A 3DR
21st July 2010
Tags: International divorce, london divorce, london divorce solicitors, London Family Lawyers, london family solicitor, London Family solicitors
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July 14th, 2010
Divorce Solicitors London commonly see divorces where the spouses are not only marriage partners, but business partners as well. Divorce can be a very personal matter, so what happens when it’s not just personal – but business too?
The answer is that it is very variable, but there are some general principles applied in all such cases. Business assets will be relevant to the settlement, and in London divorce solicitors are used to seeing business assets divided up in the same way as other matrimonial assets.
In such cases, personal issues do lead to the business relationship breaking down. The courts recognise that personal and business are never entirely separate, and so, in divorce cases the behaviour of the parties is not usually considered and does not greatly affect the divorce settlement financial terms unless the behaviour is severe. London divorce solicitors find that the court will, just as with other assets, use the starting point that assets built up during marriage should be split equally.
A family business is therefore vulnerable during a divorce, and it is necessary to minimise the resulting risks by taking advice from experienced divorce solicitors. London divorces or family splits in other metropolitan areas are particularly at risk given the large numbers of family businesses that exist in such urban areas. It can be upsetting to have to lose a business that has been set up over many years, and partners can be reluctant for this to happen. If the business is jointly owned, alternatives may be to divide it and continue together as business partners (if there is a possibility of a stable working relationship), or for one partner to ‘buy out’ the other’s share, or to divide matrimonial assets such that other property of equal value is exchanged for that partner’s share of the business partnership. It may even be possible in some cases to divide the business itself, if it happens to have two or more major areas of business that are severable.
These solutions require effective negotiations, however, and it can be difficult for these to take place during a divorce. The negotiations can be complicated, too, due to disputes over the value of the business as well as the settlement path to take. The result in these cases, inevitably, is that the court will force the sale of the business.
When this happens, the business must be valued just as in an ordinary sale of a business, The profitability, the physical and intellectual property, and the value of particular people’s input will have a bearing on this value, and the exchange can become very complicated as a result.
In general, therefore, it is very important to have experienced London divorce solicitors who are able to manage all aspects of the divorce. If it is in both partners’ interests to maintain the business together, the involvement of an experienced divorce lawyer will make negotiations more effective and quicker, helping to ensure that the best interests of the business are served as well as those of the family.
London Divorce Solicitors, London, EC2A 3DR
Tags: london divorce, london divorce solicitors, London Family Lawyers, london family solicitor, London Family solicitors
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April 19th, 2010
London divorce solicitors are waiting with bated breath for this landmark ruling, which it is hoped, will clarify the current law on pre-nuptial agreements in England & Wales.
The case concerns a pre-nuptial agreement that was drawn up by a wealthy German heiress, Katrin Radmacher, said to be worth more than £150m and her former husband, Nicolas Granatino, who is French. Mr Granatino, an investment banker turned academic at Oxford University. He agreed in the pre-nuptial agreement not to make any claim against the wealthy heiress should their marriage fail. However, on divorce in 2008, the husband did claim and was awarded £5.85m. The couple were married for 12 years and have two children.
Ms Radmacher appealed the decision in July 2009, which resulted in a landmark victory for her, slashing the husband’s award to a lump sum payment of about £1m in lieu of maintenance, plus a housing fund of £2.5m for 2 houses for his use until the children were grown up. The houses were to be returned to Ms Radmacher when the younger of their two children reached 22 years old. Effectively, Mr Granatino received an award similar to what might have been expected had he and Ms Radmacher not been married at all but had had the two children outside marriage.
Mr Granatino was given permission, however, to take his case even further to the London Supreme Court. On 22th March 2010, his divorce lawyers in London began presenting the husband’s appeal to overrule the judgment delivered by the Court of Appeal last July 2009.
It is this decision that is eagerly anticipated by divorce lawyers. Mr Granatino claims that he did not know the extent of his ex-wife’s wealth at the time of their marriage, as there was no formal disclosure of their respective financial positions (which would be a requirement in our jurisdiction but is not the norm in Germany when the pre-nuptial agreement was drawn up) and that therefore he should not be held to the agreement.
Mr Granatino’s lawyers continue to argue that the agreement should be disregarded and that the Court of Appeal’s decision in July to reduce significantly the financial settlement was “fundamentally unfair.” Ms Radmacher’s divorce lawyers however have argued that Mr Granatino was in himself independently wealthy and although the Court of Appeal had reduced his divorce settlement Mr Granatino would still be left with considerable assets which he would continue to benefit from in the future.
If the Supreme Court in London rules in favour of Ms Radmacher, the use of pre-nuptial agreements is likely to increase dramatically.
Such a decision could set a legal precedent changing divorce law within England and Wales.
The Supreme Court in London will give its ruling shortly.
Tags: london divorce, london divorce solicitors, London Family Lawyers, london family solicitor, London Family solicitors
Posted in Children and Divorce, Divorce Financial Advice, Divorce solicitors London, London Family Lawyers, London Family solicitors, London divorce cases, London divorce lawyers, London divorce news, london divorce solicitors | No Comments »
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