Visa Immigration Property
Annie and Khalim met whilst Annie was on holiday in marmaris (Turkey) in 1996. Khalim worked as a hotel receptionist .In 1997 following much correspondence and many telephone calls , Annie returned to Turkey and Khailm asked her to marry him. They were married the next week at Khalim's father's house. On contacting the british immigration authority, Annie was informed that Khalim would not be able to enter the UK immediately. He would have to apply for a visa . Annie decided to stay in turkey and in November 1998, she discovered that she was pregnant. The couple were living in a small flat adjoining the hotel and the winter was particularly cold and wet. The flat was damp with no heating. Annie and Khalim decided that the health of Annie and their unborn child would be better served if Annie returned to the UK. Annie arrived in Cardiff in Feb. 1999, and went to live with her parents in their house in whit church, Cardiff. From there she continued to support Khalim application to join her in the UK In july 1999, Annie gave birth to their son Mehmet. In September of that year Khalim was granted a visa, and joined them.
Annie's mother gave the couple 10,000 which they used as a deposit to purchase a house. The house, in thorn hill is a 2 bed roomed end terrace. It cost them 80,000 and they used some savings and the money given by Annie's mother together with a mortgage of 64,000 to purchase the property. The purchase was completed in November 1999. Khalim obtained a position in jury's hotel which paid him 900 a month (gross). Annie went to work as a clerical assistant, working three days a week. During the time that she was at work, her mother cared for Mehment. Annie earned 500 per month gross. Annie and Khalim decided to have a UK wedding, to coincide with the millennium celebrations. They went through a civil ceremony in January 2000. Their lives went smoothly until early 2003, when Khalim began working much longer hours at the hotel. He claimed that this was necessary because the money was short and he wanted to save so that they could return to Turkey for a holiday and so that his family could see Mehmet.
By July 2003, there were no holiday plans in place, but khalim was spending more and more time in work, often sleeping in the hotel. In September 2003, Khalim told Annie that he was in love with Zena, a colleague at the jury's hotel. He moved out of the matrimonial home, and into Zena's flat Annie has consulted you and asks for advise on the following matters and tells you that she seeking a divorce based on Khalim's admitted adultery. You may assume that the divorce proceedings undefended without inadent. Question 1 Khalim has told Annie that the house must be sold and the proceeds divided 50/50 between them.the house is currently valued at 135,000. At the time of the purchase the property was put in Khalim's sole name. (20 marks, 666 words) Question 2 Khalim says that he can not afford to pay maintenance for either Annie or Mehmet. Annie is currently living on income support, as she gave up work, following their relationship breakdown. (20 marks, 666 words) Question 3 Khalim wishes to take Mehmet to Turkey. He says it is for a holiday and a family visit, but Annie fears that this is a clock for child abduction. (20 marks, 666 words) In each case, advise Annie of the law (citing cases and relevant statutes) and the practice of the court. Explain to her how she might protect her and Mehmet's position.
1. The House
As a non -owning spouse Annie has matrimonial home rights in the matrimonial home, although if she has failed to protect her rights by registering them she may be at risk of losing them, or finding that they are subordinated to those of a third party. The current law is contained in the Family Law Act 1996. Because of the deposit that was provided by Annie for the purchase of the house she will have an equitable interest in the property even if she has not registered that interest it ma still be protected on the basis that it is an overriding interest, which therefore binds a purchaser.
Annie therefore can make an application to the court for a property adjustment order. This can be done either by ordering the out-and out transfer of property, or that property is sold and the proceeds of sale divided between her and Khalim. Such an order can also be made for the benefit of Mehmet.
It is likely in this instance that Annie will be seeking a property transfer order which is provided for under section 21(2)(a) of the Matrimonial Causes Act and stipulates that the court may order that a party must transfer such of his or her property as may be specified in favour of the other party or a child of the family, such property being property to which that party is entitled, either in possession or reversion. The court will consider how each party's capital assets were acquired for example in H v H (Financial Provision: Capital Assets) Thorpe J held that the fact that the wife's capital holdings had been provided by her husband's parents was a relevant consideration, influencing him not to make any further capital provision for her. Therefore it is likely that the court will note in this case that the capital for the property was in part provided by Annie's parents. Although this will not be determinative of how the property will be divided.
The court will however approach the distribution of the property between the parties in a manner which is more favourable to the applicant than it would be in a case where her contribution had been confined to domestic matters only. There has been a move towards a more careful evaluation of each parties' rights in any property holdings. An example of this can be seen in M v B (Ancillary Proceedings: Lump Sum) where Thorpe LJ stated that any decision as to how the proceeds of sale are to be divided to give effect to the section 25 criteria must start from an accurate assessment of what the parties' respective proprietary interests are
Therefore consideration will be given to the fact that Alice's parents contributed towards the property and that by virtue of her income she also continues to do so. It is likely that the courts will award that a transfer of equity be made and perhaps that Khalim will not receive his share of the profit on the property until such a time as Mehmet reaches 18. This would be the most suitable solution for Annie.
2. Maintenance
The Child Support Act 1991 will deal with the issue of maintenance assessment and collecting and enforcing maintenance payments for children. Therefore this is whom Annie will need to apply to in order that she force Khalim into paying maintenance for Mehmet.
First Annie must demonstrate that Mehmet is a qualifying child for the purposes of the act. A qualifying child is a child who is the natural child of both parents, or who has been adopted by both parents. A Child is defined as being under 16, or under 19 but in receipt of full-time education. The jurisdiction of a child support officer will extend to those cases where the child, the absent parent, and the parent with care are all habitually resident in the United Kingdom.Khalim has a visa and has now lived in the UK for over two years and is therefore habitually resident in the UK as are Mehmet and Khalim. As the qualifications have been meet this means that Khalim's assessment of maintenance will be subject to review by the Child Support Agency.
Annie must therefore make an application for child maintenance to the child support agency. She must provide them with detailed information about her personal circumstances and those of her partner. This data will be used to calculate how much maintenance Khalim is to pay. The calculation will be made under the formula progress through five stages:
1. The maintenance requirement
2. The Exempt Income calculation
3. The assessable income calculation
4. The maintenance assessment calculation
5. The protected income calculation
The maintenance requirement is the minimum amount considered necessary for the maintenance of a child. The exempt income will allow Khalim to keep a limited amount of income to make provision for his own needs. The assessable income will be calculated by taking the parent's net income and subtracting the exempt income. The remainder is the assessable income. The maintenance assessment is calculated by adding together the assessable income of each parent and dividing the total by two; the final figure is the sum available for the support of the child. As Annie is on income support, only the assessable income of Khalim will be divided by two. The maintenance assessment will then be compared with the maintenance requirement and if it is less than , or equal to the maintenance requirement, the absent parent is required to pay 50% of the assessable income if it is more then the formula allows for an additional amount of maintenance to be payable .
Finally there is the protected income which takes into account the fact that no allowance is made for the cost of maintaining a new spouse or partner. Before finalising how much Khalim has to pay the Child Support Agency will assess how much the protected income will amount to. The amount that a couple will receive if they were deriving their income from income support are added together plus a fixed margin about these rates and a further margin of a percentage of the family's income above the income support level. Therefore Khalim's protected income will be calculated by adding together all income coming into his current family (him and Zena) including any income that Zena may be earning
The Act also imposes a degree of compulsion on Annie to co-operate with the Agency. Section 6(1) states that the parent with care of a child who is in receipt of income support, family credit or disability living allowance shall authorise the Child Support Agency to take action to recover child support from the absent parent if required to do so by the Agency.
Therefore Annie is advised to make an application to the Child Support Agency and furthermore Khalim cannot refuse to pay maintenance for his child and will be legally compelled to do so.
3. Taking Mehmet out of the Jurisdiction
The Child Abduction Act 1984 provides a measure of safeguard against a child being taken out of the jurisdiction without the appropriate consent. Section 13(1)(b) of the Children Act 1989 reinforces this safeguard. All decisions in relation to Mehmet will require reference to the welfare principle which is the golden rule which runs through decisions made by the courts in relation to children. Section 1 of the Children Act 1989 provides that:
When a court determines any question with respect to
(a) the upbringing of a child; or
(b) the administration of the child's property or the application of any income arising from it,
the child 's welfare shall be the court's paramount consideration
Married parents enjoy equal parental responsibility and, in the absence of a court order, each is entitled to exercise all aspects of that responsibility. This does not mean that a parent is free to take a child away from their settled home nor does it mean that a parent is entitled to refuse to return a child after a contact visit where the child 's home is with another parent.
A prohibited steps order means:
. An order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of the kind specified in the order, shall be taken by any person without the consent of the court
A prohibited steps order is confined to controlling those steps which could be taken by a parent which could be taken by a parent in meeting his parental responsibility of a child
It can be seen that this is an order which can impose limits on the exercise of parental responsibility by a parent, but that it can also be use to control the behaviour of any person towards a child, which therefore includes a person who does not have parental responsibility. The purpose of a prohibited steps order is to enable a court to play a continuing parental role in relation to the child by empowering it to identify those matters of parental responsibility which must be referred back to the court.
Where a parent is anxious that her child will be permanently removed from the jurisdiction she is entitled to apply under section 10 of the Children Act for a prohibited steps order under which the court could either prohibit the child's removal absolutely or it can control when and to where he child will be taken by the imposition of conditions in the order. Therefore in a situation such as the one that Annie faces, that she is faced with Mehmet being permanently abroad it would seem sensible for her to apply for a prohibited steps order to obviate this risk. It is advisable that such an order is sought where there is a perceived risk of the child being taken overseas without consent; for once a child as been taken from the country it may be extremely difficult to secure his return.
Therefore is advised that Alice apply to the court for a prohibited steps order and it is likely that the court will take into account an assessment of the risk to Mehmet against his interests in seeing his father and paternal grandparents etc. Of course as discussed Mehmet 's interests will be paramount in the courts decision.
Bibliography
Cases
B v B (Financial Provision) [1989] 1 FLR 119
H v H (Financial Provision: Capital Assets) [1993] 2 FLR 335
P v P (Financial Provision) [1989] 2 FLR 241
Re B (Minors) (Residence Order) [1992] 3 ALL ER 867;
Re H (A Minor ) (Interim Custody) [1991] 2 FLR 411
Re H (Prohibited Steps Order) [1995] 1 FLR 638
Re H (Application to Remove from Jurisdiction) [1998] 1 FLR 848
Lord Lilford v Glyn [1979] 1 ALL ER 441
Williams & Glyn's Bank Ltd v Boland [1981] AC 487
Legislation
Child Abduction Act 1984
Children Act 1989
Child Support Act 1991
Family Law Act 1996
Land Registration Act 1925
Matrimonial Causes Act 1972
Books
Cretney S & Mason J & Bailey-Harris R Principles of Family Law, London Sweet and Maxwell
Hale B, Pearl E, Cooke & Bates P, (2002) The Family, Law and Society: Cases and Materials, London Butterworths
Hayes M & Williams C, (2004) Family Law: Principles, Policy and Practice, Second Edition, Butterworths
Herring J, (2004) Family Law, Longman
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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