Tamsin Caine is joined by Nicola Bright on our latest podcast episode - they dive into the complexities of divorce
And one of the team will be in touch.”
Nichola Bright
Nichola has been practising family law since 2008 and has worked at highly regarded practices in Cheshire and Lancashire. Nichola joined Myerson in 2012 and is now a Partner at the firm.
Nichola advises on a wide range of family matters, including divorce and high net-worth financial settlements, separation, co-habitation, pre-nuptial agreements, complex disputes regarding children, fertility law and surrogacy law.
Nichola is a committed member of Resolution and has achieved specialist accreditation in complex financial remedies and private children law.
Nichola has been named within the Legal 500 as a ‘Rising Star’ for several years. She has been described as ‘always very well prepared’ and has ‘good attention to detail whilst not losing sight of the bigger picture. She gives robust advice but always maintains good relationships with her clients.'
https://www.myerson.co.uk/personal/family-law/divorce-solicitors
Tamsin Caine
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
https://smartdivorce.co.uk
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it here https://yourdivorcehandbook.co.uk/buy-the-book/
(The transcript has been created by an AI, apologies for any mistakes)
Tamsin Caine: 0:55
Hello and welcome to today's episode of the Smart Divorce Podcast. We've got another special episode for you today and we are going to be talking about what happens with financial settlements where either the spouse or one of the children has extra needs, has a disability or some other form of additional needs, meaning that spouse working is very difficult and there are also ongoing responsibilities, caring responsibilities throughout the spouse's life. So I am joined to talk about this fascinating subject which comes up all the time in the work that I do, by the wonderful Nichola Bright from Myersons. Hi, Nichola, how are you doing?
Nichola Bright: 1:45
I'm fine. Thank you for that lovely introduction.
Tamsin Caine: 1:49
No problem, I'm going to ask you to tell us a bit about you and your career and the work that you do so far if that's okay to start with?
Nichola Bright: 1:53
Yes, absolutely so I'm a family solicitor so I specialise on family law. Which covers a range of family issues including divorce, disputes about children and where they will live on separation, or perhaps the amount of contact they will have with each parent. Um, I also deal with issues surrounding surrogacy and fertility law, which falls under the family law umbrella. I assist people with prenuptial agreements and postnuptial agreements, and I also help with more specialized things such as farming divorces or divorces where there is a farm involved. It's quite vast really in terms of I pretty much do all family law. The only thing we don't cover in our department is if there's an unmarried couple who are in dispute about what to do with their property. It falls under civil law and therefore we have a separate team at Myerson who deal with that. But everything else to do with the family we will assist with, and really it's about family. Breakdown is the main source of work in terms of divorcing people. Getting them back to a hopefully stable financial position and assisting them with their finances is the majority of the work I do, and within that obviously there's lots of variations disabled children and adults being one of them.
Tamsin Caine: 3:27
Absolutely, and you've worked in family law for quite some time. I mean people who can see you because they're watching on the YouTube channel will know you don't look like you're old enough to have been doing this for some time.
Nichola Bright: 3:40
Thanks, well 15 years, I think this year, or 16 years this year. I've been working in family and I've been at Myerson for 11 years, so I've been here a long time. Part of the furniture now based in the centre of Altrincham. So I think because I've been here for a while, you get to know lots of people locally and, yeah, it's just a lovely place to work in Altrincham and at Myerson as well. So I'm very lucky.
Tamsin Caine: 4:07
Absolutely, it certainly is.
Tamsin Caine: 4:10
The cracking firm and your family team there are all fabulous, thank you.
Tamsin Caine: 4:16
So we're going to talk today and this situation comes up a lot in questions from clients and actually seems to be coming up more and more.
Tamsin Caine: 4:27
So if we start off with the situation with children so children who have disabilities and these can be things such and when I say it's coming up more and more, I think because what I'm finding from clients is a lot of children with additional needs, children with additional needs such as neurodiversity, autism, adhd, some issues which in some cases, depending on where on the spectrum they are, they can happily hold down a full-time job or a part-time job, but in some cases, working for these children is not a possibility and even living independently in the future is not a possibility. So I think we're looking at a situation where certainly one of the spouses is going to have caring responsibilities for the rest of their lives and is potentially going to need to put something in place for those dependent children, but after they're not able to care for them themselves any longer. So let's start with um, with contact, so how where the child might live, um, and and who looks after them, and so on,
Nichola Bright: 5:51
So most of the time when first separate, they can sit down and agree something between themselves and it's a kitchen table discussion and they both parents are in the right headspace to decide what's best for that child or the children. They may have a sibling group with the same difficulty. So autism doesn't run in families, for example. So you may have two or three children with similar needs or or the same diagnosis but very differing needs. But each family is so different it's hard to really go into that in any other detail, other than everyone knows that every family is unique. So if the parents can sit down and agree something that they know is right for that child, then that that is going to be the absolute best way to deal with it. And we don't see those cases. They only come to us if they can't reach an agreement. So there are lots of families who manage this without solicitors and the courts becoming involved. I am really struggling. My ex doesn't seem to get it, doesn't understand that. You know, let's call this child Sarah. You know Sarah has these difficulties and she simply doesn't like change. And he doesn't understand that. He thinks she's going to adapt to a 50-50 arrangement. Those kind of conversations this is quite a common problem. We get where one parent just doesn't seem to understand perhaps because they've not been the primary caregiver, or don't want to really understand it, because it means that they won't be seeing the child as much, sadly, that there may then be a dispute about where this child shall live or how much contact they should have with the other parents. So we would initially send them off to a mediator where they could hopefully sit down with a mediator to try and try and reach an agreement, or, you know, looking at all the needs of the children in the in the particular case. Now, if that's not possible, some cases end up going to solicitors and then courts as a last, you know, last resort, um. So when I'm talking now about what the court look at, I'm really talking about those cases that end up before a judge, um, so that you, your listeners, know what the courts will look at when you're dealing with children with disabilities and special educational needs. So when they make any decision, when a court makes any decision about a child's care or the contact they have with the other parent or who they're going to live with, the welfare principle, which means that the core has to give paramount consideration. So that's above everything else to the welfare of the child.
Nichola Bright: 8:19
So in this assessment you're looking at the child as a unique being, as part of a sibling group potentially, and looking at their specific care needs, which are going to differ from case to case. Like you said, some children won't need much handholding but do have additional needs Say they have some support at school all the way down to physical disabilities where they are reliant on wheelchairs and care, or severe autism, perhaps where they're non-verbal, so really differing extremes. Autism, perhaps where they're non-verbal, so really differing extremes. And so there's no uniform approach as to assessing what's in the best interests or what's um, what's going to satisfy this paramount consideration test. But the judge has to consider the disabilities as part of that, so it can result in different decisions by the court for different sibling groups. So you may have decisions by the court for different sibling groups, so you may have. It may be that you have, you have two siblings, one, both on the autistic spectrum. One is, is um, at a you know, a more severe stage or presentation than the other. And it may be that that child has less contact or has a different contact arrangement than their sibling. So that that can happen.
Nichola Bright: 9:32
I had a case where there was three children, all with quite severe autism and Asperger's, and two of them expressed verbally. They wanted to see dad and did see dad regularly, and then the youngest one just couldn't cope with any change, was non-verbal. So there was a different arrangement for him for now, which then changed in the future. So very, very different.
Nichola Bright: 9:53
So the court will look at when they're looking at a live with argument like who the child shall live with, the court are going to look at to what extent each parent is capable of meeting the children's needs to decide whether what would be in the child's best interest.
Nichola Bright: 10:06
So courts have really wide ranging powers as well, and they can even make decisions about whether a child receives a particular medical treatment or not if there was a dispute about that. So it really is a balancing exercise and it may well be that most of the time the court are going to need assistance from CAFCAS on this, who who work for the court as an advisory service, who will go out and meet the parents and meet the children so that the parents can be satisfied that everything's being looked at in a lot of detail, rather than a judge just sat there only with information before him or her and then making a decision. Actually, there's someone on the ground going to see the family and they may see that family several times to decide what to advise the court, and they will then advise the court what's best for the children Wonderful.
Tamsin Caine: 10:51
Crikey, it's a lot. It's a lot, isn't it? So talk to me about CAFCAS, just very briefly. What are they? Who are they? What does it mean? What do they do?
Nichola Bright: 11:04
So CAFCAS work for the court system, for the justice system, and they are an organisation usually of ex-social workers.
Nichola Bright: 11:14
Workers actually people in in the social work field often go and work for kafkas or they or they could be trained specifically by kafkas to do this work.
Nichola Bright: 11:22
So they will.
Nichola Bright: 11:23
They will write to the parents on an app.
Nichola Bright: 11:26
If someone makes an application to the court, the first thing they do is write to the parents and carry out what's called a safeguarding check.
Nichola Bright: 11:32
So they do things like police checks, social services checks and have a really detailed discussion with each parent before the case even goes to court to decide what the issues are and whether they can advise the court at an early stage whether actually this needs a lot of investigation, this needs more work. So when you've got a case where there are children with disabilities and special needs, the likelihood is at that very early stage CAFCAS will say to the court we need to do a full assessment here, we need to prepare a full report of recommendations and it's going to take three to four months to complete because they will meet the family several times and then prepare reports, or sometimes addendum reports and further reports, so that they're involved with the family from start to finish and they're a really great organisation and the court wouldn't be able to function without them, because there's no one, like I say, on the ground actually advising the court what's in the best interest of these children.
Tamsin Caine: 12:23
Yeah, no, they sound ace. That sounds like a great plan. And so then we move on to the financial situation, because where you've got, where you've got families where the children don't have additional needs, essentially the the recognition is that, although I know from personal experience, this isn't actually the real case in real life. But, um, children in class, there's not children anymore, and not needing maintenance etc. From from the end of their a level year.
Tamsin Caine: 12:59
So age 18, yes, as I say, in reality, I'm sure most parents who have children over the age of 18 know that they're still going to get financially responsible they certainly can do, but where you've got children with additional needs, with disabilities, with special educational needs, that that continues and can well continue, as I said before, throughout their lifetime. So how do financial settlements differ for those families?
Nichola Bright: 13:34
Yeah, so disability of a child and an adult child, so a child beyond the age of 18 who's still at home either by virtue of disability or not, so that can influence what is fair and reasonable in two ways so it can affect the adult themselves and it can affect the child directly. So the the legal position is, I mean, I say, straightforward. It doesn't sound straightforward but essentially the court's going to look at how that disability affects, in short, the primary caregiver, so the spouse who cares for the child most of the time, how it's going to affect their financial position. We can assume it's going to have a negative impact on their financial position. So if we just scale back a bit and look at what the, what the law provides for a disabled spouse, we can kind of work from there. So if you, within within the legal framework that we we use within this area of law it's called the Matrimonial Causes Act that we look at and there's a really important part of that act called Section 25, which has a list of factors that the court must consider when deciding how to divide finances and how to divide the assets of a marriage finances and how to divide the assets of a marriage. And so that health issues are not overlooked. The court have to, as part of that process, have to look at one of the factors, which is any physical or mental disability of either of the parties of the marriage. So that covers your spouses. So the focus there is therefore on the disabled person's financial needs and their income and earning capacity and looking at the financial impact of the health issues. And in cases where you've got a disabled adult divorcing, things like a contingency fund might be needed for care needs or ongoing medical and ongoing periodical payments for ongoing medical needs medical um, ongoing periodical payments for ongoing medical needs. So they will, they will have some benefits. Hopefully the benefit system will provide some support, but the court will look at any unmet need where the gap needs bridging and often that means that more money is needed from the other party, if it, if it allows.
Nichola Bright: 15:55
So there can be an unfair division of assets. What we say unfair, we, when I say unfair, I mean not 50 50, because that the other person simply wouldn't be able to survive without it and wouldn't be able to meet their own, their own needs. And when you look at disabled children of those of those spouses or disabled adult children, there's nothing specific in legislation relating to a disabled child, but the actual section 25 that I'm referred to has an overarching provision at the top which says the court's first consideration is given to any welfare of any minor child under 18. So that covers your children. But then what if the children are adult children that are disabled? And that's where things are a bit more blurry.
Nichola Bright: 16:45
Um, but this is where it links back to the spouse's needs, because they are going to have caring responsibilities and therefore their income and earning capacity is going to be very different from perhaps the other spouse because of these caring responsibilities. So that's really the starting point is to look at the financial impact on that parent spouse who's looking after the adult disabled child. You know this could be a lifetime, they could be looking after them for their whole life and then then then you need to look at, like you said before, what happens when they die. Where do the children? There needs to be provision for those children to be cared for when they're in their 40s, 50s, 60s. So all of those factors play a part.
Nichola Bright: 17:30
And they also look at things like adapted homes, specialised equipment, and all of that pays a part in the share of the assets of a case. So you are going to end up with, most likely, a case where more of the assets are going to be going one way than the other to really meet those needs. Um, and to not do that would be would leave someone financially destitute. So I've got you know, every case is different, like I say, but it would be very. I'd find it very difficult to see a case where someone will be left without enough money to keep their adapted home, for example, or pay for a disabled adult's child's medication, or their electricity bill could be huge because they're in the house all the time, because perhaps they're immobile.
Tamsin Caine: 18:07
So there's lots of factors, but you know it's huge expense to one party usually yeah, absolutely, because the if you're looking at your, your needs as an individual, so once the children are grown up and assumed to have to be financially independent, your costs are going to be just for for one adult. Your needs are just going to be for one adult. Yeah, and it's.
Tamsin Caine: 18:34
It's feasible to see you moving down. You know, downsizing to a small home, for example, those options aren't available where there are caring needs, because you're actually still paying for. You know, even simple things like you don't get the single adult discount on council tax because there's two adults there. So all of those things, all of your costs, your food costs, your electricity costs, your gas costs, I mean they're not going to double, but they are going to be higher if there are two adults.
Nichola Bright: 19:07
this child's going to is going to stay there, they're going to stay that they're never going to drop. Like you can have that option in other cases where the children go and leave the home, go off to uni, potentially the options are downsized and therefore, as you, she feels you just haven't got that option, you haven't got that freedom at all.
Tamsin Caine: 19:23
Yeah no, definitely. Do you tend to find that cases where these issues are um, are kind of in the mix, settle out of court or do they cop? Do they often end up requiring a court to make a ?
Nichola Bright: 19:44
It's difficult for me to answer that because I only see, like the worst ones, which because they only really go to solicitors when they can't agree I mean, we, if we get them as new cases, obviously we always try and settle them out of court. I'd probably say it's about 50-50, in terms of which ones settle at mediation and a bit of negotiation through the solicitor and which ones have to go all the way to a court and a decision by a judge, whether that's to do with child contact or whether that's to do with financial asset split. Yeah, I'd probably say it's about 50-50. It's really difficult when they go to court because it costs a loter's allowance and they can't work. So it may well be that they do get legal aid if there's been domestic abuse or some form of abuse within the relationship. So it's really difficult If they do end up going to court.
Nichola Bright: 20:54
That's another financial factor to take into account, because they can say to the court well, this is how much I've spent on legal fees, and then there has to be allowance for that as well, and whether they're divided between the two spouses or not, there's there's all sorts of things to take into account when you have to make an application to court and some people rely on litigation funding to fund their legal fees. So they'll end up applying to a third party lender who'll fund their legal fees that they then pay back at the end, which is like a liability, obviously a debt they'll have to pay, and I've seen cases where the other spouse has been ordered to pay those fees because there simply isn't the money available from the spouse with the disabled child, disabled adult child or disabled child to pay it. So it's, we try and keep them out of court because of all these extra considerations. Mainly there's a lack of income, lack of earning capacity Really tough cases to deal with.
Tamsin Caine: 21:48
So if you've got a primary carer or primary caring parent who the child lives with disabled adult child, let's be specific about it. He lives with them and they look after. Let's be specific about it. He lives with them and they look after them kind of all the time and there's little input from the other spouse. Did the court make provision or feel that it's reasonable to have as a need the respite care for the caring spouse?
Nichola Bright: 22:18
Yeah, they would consider that as a very important need. So when you prepare your case for court you have to list for the court a really detailed monthly outgoing schedule which covers all your financial needs. So respite care should be on that schedule and it it's then look at, looked at as a whole, so say, if your needs let's just say for argument, say, are three thousand pound a month and you get benefits of, say, a thousand, there's a gap there of two thousand and that respite care would be taken into account as part of that plugging the gap. Um, and if the other person can afford to pay maintenance and you know I'm assuming everyone's a high earner. They're not these cases, don't?
Nichola Bright: 23:00
You know these cases can be really difficult. You could have the other parent earning very little as well. And therefore you're looking at can we sell cap? Can we downsize? Is it possible to downsize to release capital for these ongoing needs? Um, but yes, it would be taken into account absolutely. Respite care, because it's really expensive. There are I mean, I know that there are some local authorities who do provide respite care, um, and don't charge for it, but you know it's few and far between and it's really hard to get that service. It's a postcode lottery absolutely so.
Tamsin Caine: 23:31
If there is the money in the family, yeah, respite care should be included in the ongoing needs, because and it's not considered as a as like a big luxury it's considered as something that's a need even even holidays are taken into account as a need.
Nichola Bright: 23:47
It's not that they're considered as a luxury. You know everyone's entitled to a holiday. Holidays with a disabled adult child, if it's possible, are going to cost more, so it's. You really have to. When you're doing these budgets, you really have to think very carefully and sit down with your client. So I'll sit down with them and go through everything in detail and they won't think about this sort of stuff and I'll say you know how much does respite cost? How much will a holiday cost? What's the extra cost for taking the wheelchair on the plane or what's the extra cost of taking equipment? And they really need to think about it.
Nichola Bright: 24:16
And it's almost like it can be like three pages long of just all these different, yeah, outgoings, but across the year you spread and you know holidays you don't take every month. You spread the cost across the year so you have an average yeah, so that there's lots to do when you get divorced, sadly. So there is a lot of homework for someone who's going through. It's really difficult sometimes there's some, you know to sit down and think of everything. So I'll often send them a big list to jog their memory about things they might forget to put down.
Tamsin Caine: 24:43
Yeah, yeah, absolutely. And as you say when, when you're looking at disabled adult children, that there is more, there is even more. Or you know, or disabled spouses you know there could be, I don't know um like a scooter instead of a wheelchair, because so that they give, get some independence, maybe some changes that need to be adapted to the property to enable them to live there alone rather than if they were living with the spouse there. You know those, those sorts of things have all got to be taken into consideration, don't they? Yeah, they really do so. Child maintenance is generally, as we talked about before, payable to um from one spouse to another spouse until the child is 18, or kind of ending required schooling. What's the situation for disabled adult children? Is the maintenance payable for them post 18?
Nichola Bright: 25:44
Yeah. So if they're post 18, the court has the power to go beyond the typical government regime, which is the child maintenance service regime which we all know and love, which ends when the child finishes A-levels and doesn't cover anything like university or anything beyond that. So, but where there is a disabled child, the court do have jurisdiction to go beyond that CMS that's child maintenance service regime. And there's another provision under Schedule 1 of the Children Act, which is a different area of law that we can look to, where someone can apply for top-up maintenance.
Nichola Bright: 26:23
So lump sums, open-ended lump sums, for things like adapted wheelchairs or adapted equipment needed in the home, um, or it can be anything, or it could be for an adapted car for a child that can drive but needs an adapted car, um, and also for housing provision for a disabled child. So if this is particularly helpful in a case where you've got unmarried parents, where there's no automatic right for one spouse to provide the other with the property or divide their capital, for example, the schedule one of the children acts can, where you have a disabled child, you can actually apply for housing provision for a disabled child. That house is always owned by the other person, but it's there for the provision of that child to live in with their carer. So it's quite far reaching what you can do.
Tamsin Caine: 27:20
Isn't it, crikey? I didn't know that. That's really interesting. What's the situation where either the adult or the child is receiving or received compensation for the reason for their disability, or charitable funding is available? Or I guess the other one that I've seen a few times is where there's been a and this isn't always the kind of resulting long-term disability, but where there's been a pay, a payment for a critical illness, for example, so there's been some form of lump sum payment been received, either for the spouse or for the disabled adult child.
Nichola Bright: 27:57
Yeah, yeah, so we we've seen this before as well with the, with the critical illness. It's a funny one, isn't it? Because it's been paid out, but then they've survived whatever critical illness it was. Is that the kind of situation you were thinking of? Yeah, yeah well, I guess there's.
Tamsin Caine: 28:13
Yeah, it's sort of in the pot, but should it be in the pot, or should it?
Nichola Bright: 28:17
yeah, critical illness I'll talk about separately. I think it's a bit more. It's a bit, it's slightly different, because it's probably not won't have been paid out for care needs. It will have been paid out because, sadly, that person may pass away and they only pay out when it's really serious, don't they? The critical illness policy, so something dramatic must have happened. For but it does happen. I've seen it before where the person you know thankfully survives their illness.
Nichola Bright: 28:44
But if we look at compensation for now, when, if a person's received compensation because they've had an accident, say they've had a bad car accident and it's impacted on their daily life or they've, you know, let's give an example of someone that's got really serious back injuries and therefore, struggling to walk, has needed spinal surgery, that kind of thing which sadly is really common when car accidents happen. So they'll get compensation for that and that money is therefore assumed to be earmarked for their care and it should be and usually is earmarked for their care in a, in the context of a court looking at a case and because it's been an. So they've been through a probably quite a legal battle to get that compensation and it's been independently assessed already as that's what they need for their care. You know my husband's a personal injury barrister and I've seen the schedules he has to do and he you know he's very, very meticulous in terms of what is needed for their care for the rest of their life. So to tap into that money would be, would be, would be wrong really morally, and I think the court recognized that. So when you have got compensation, it's you.
Nichola Bright: 29:54
There's usually a very, very strong argument that's ring fenced and not touched as part of the split.
Nichola Bright: 29:59
It can be taken into account in the sense well, you've got that money and that money covers you for an adaptive property which can help the other side because they don't need to put the hand in their pocket and buy them a property or not necessarily buy them one, but the assets don't need to shift too much.
Nichola Bright: 30:12
But there's no, I would say there's no argument for a spouse who's not received the compensation to say, well, I want 50% of that. That wouldn't happen. The court will look at it as meeting their needs and therefore it should be earmarked for that. Same goes if you have, like, a military charity providing funding to make life easier for a disabled service person, there's a strong argument that that charity funding should be reinfenced and protected. On divorce, it can be taken into account as a resource so it helps in the sense of, well, that person doesn't have, um, the need for maintenance as much perhaps that they would if that money wasn't there, but there's it's. It'd be very difficult to tap into that money and to be able to share that in a divorce.
Nichola Bright: 30:56
Yeah, yeah no, that makes sense and then with the critical illness policy. If the person's fully recovered and they've had their critical illness payment paid out and they've fully recovered and it's therefore not needed, then there's more of an argument for that to be shared or taken into account as part of the overall settlement. Definitely the the. It's quite different from compensation in the sense that person's disabled for life. They're going to need that money. If someone's, you know, made a miraculous recovery and has got this critical illness payout but they're not going to need that money for care, there's more of an argument from the other side's point of view to say that should be at least not shared 50-50, I wouldn't say but shared in that it will take into account as part of the settlement.
Tamsin Caine: 31:39
Okay, no, fair enough. It's a difficult one, that isn't it? Because you kind of feel well, if somebody's been through a critical illness and survived, you kind of feel like it feels like it ought to be.
Nichola Bright: 31:52
It's a lot of timing as well, you know, if they, if they were paid out after separation.
Nichola Bright: 31:56
There's more of an argument for it to be kept back, if there's. If it's been paid out during the marriage they were still in a relationship. They kind of utilized it a bit and shared in it and intermingled it with marital funds. There's much more of an argument for it to be shared as part of the asset split. So it really depends when it was received whether it is at all needed for care at all. If someone's left with any lasting um illness from the illness they they got over, um, yeah, it's a difficult one. It's a difficult one but it's there's. I'd say it's less clear-cut than the compensation, definitely because you just don't know if that person's going to have those long-term needs if they've recovered fair enough.
Tamsin Caine: 32:34
No, that makes sense. If then, in that I'm just thinking the adult, disabled, adult children situation again, and so quite often they will receive some payments from the government, support, and so I'm thinking of pips, for example, um, that that they might receive through their lifetime, yeah, does that need to go into the pot as a, as an income and that's kind of received and therefore do would you take all of the child's ongoing needs into consideration, because I know there are some cases where, um, I work with families and the the pip is classed as belonging to the child, adult child, yeah, and pay used to pay for discretionary spending for them, and then the kind of ongoing kind of housing needs, bills, etc. Food, etc, etc. And and to an extent, holidays, because it's not that much. Um, yeah, kind of all in the pot paid for by the, by the parents, how, like? How does it depend on whether how much money there is in the first place and how much is available?
Nichola Bright: 33:55
Yeah.
Nichola Bright: 33:55
So if you had, like a particularly wealthy family and there wasn't a need to look at the PIP as a resource and it was belonging to the child, sat in a bank account, perhaps being used for ad hoc spending, you probably wouldn't need to look at it. Understanding, you probably wouldn't need to look at it and it would depend on this. So in severe, if you've got a severely disabled child who doesn't isn't able to control their own bank account, for example, and that pip is, although it goes into a bank account, there's a power of attorney for the parents who access it and that pip is very much used for day-to-day care and it is used. It's all used up, you know it's used every month. Then what? What the other side would argue is to say, well, that's an income resource available to you and that's already paying for some of the expenses you've listed and they've got an argument. You know that's valid, that. So therefore, the court would want some disclosure about how much money is being used from the pip towards the expenditure.
Nichola Bright: 34:52
But in a case where you you've got, you know, two wealthy parents, for example, and that that pip is perhaps being used, is being built up in an account, was perhaps being used by the adult disabled child to you know, pay for things online or go out with their friends every now and again, then it's there's less of an argument for that to be taken into account because really it's not being accessed by that parent. Yeah, but the other side are going to jump up and down about that and say, well, it's, it's for the, it's for the care needs and therefore he's knocking off this income schedule. You, this budget, you've put down to the court that you've written down, so it's. It depends which side of the coin you're on, really, but I think the court would be interested to know who's getting it, who's using it and is it all being used? Um, yeah, to decide really, if it's, but I think nine times out of ten it's going to be being used for care needs and care and therefore the other side have got a valid argument to say that's going to have to come off your budget, because you can't say to me you to have to come off your budget because you can't say to me you need two thousand pound a month when actually you're already getting six hundred to pay for some of this stuff.
Nichola Bright: 35:59
I mean, I don't know what the exact figures are. I know that the higher rate, the um pip, is obviously more if you've got the mobility element, but it's, they're not massive amounts of money. You know every four weeks they're not. I wouldn't even say it was over a thousand pounds. So yeah, it's going to go to play a part. Yeah, yeah, yeah.
Tamsin Caine: 36:21
OK, wonderful, you'll be amazed to hear we're coming to the end of our time.
Nichola Bright: 36:27
I know it goes so quick.
Tamsin Caine: 36:28
It really does it really does? Um, before we go, is there anything that that you want to add or anything that you feel that I should have asked?
Nichola Bright: 36:40
you about that. We haven't talked about, um. I think we've covered most, most issues, really. It's it is...
Nichola Bright: 36:46
The problem with family law is that there is such a wide, a wide discretion when you have a court involved that it's really difficult for us to advise in any certainty exactly what might happen.
Nichola Bright: 36:59
We can say what the range of outcomes might be, but with cases being so different and differing needs of each child or perhaps you've got a disabled spouse and their needs we can present the case as best we can and then ultimately, if you end up in court, it's up to it's up to a judge. But these are sort of general pointers in terms of the court are going to take. They're not going to ignore disability, they're not going to ignore needs, they're not going to ignore care needs and they're certainly not going to ignore the needs of a disabled adult child. So I hope that listeners can take comfort in that if they are thinking about separating and have these issues in their family, um, so but yeah, obviously, if they ever want to speak to anyone about it, we do a free consultation. We can speak to someone on the phone for half an hour and give them some pointers, um, before they even make a decision as to what to do.
Tamsin Caine: 37:49
Some people just really feel a bit trapped in these situations yeah, absolutely, um, and nicola's details will be in the show notes. So if you need to reach out to her because this is you, um, or you know, if you're in a situation where you're trying to negotiate um a settlement and and this is your family and you're struggling to get anywhere, please do reach out to nicola, because I'm sure she'd be delighted to hear from you. It just remains for me to thank you for joining us today. I think that was massively useful. I know lots of people who will really benefit from listening to this episode. Thank you for listening today and if you have felt that this was useful, please do give us a five star rating, because that helps us get the podcast out to more and more people who need us.
Tamsin Caine 3: 38:37
Okay, many thanks, thank you hi, and I hope you enjoyed that episode of the smart divorce podcast. If you would like to get in touch, please have a look in the show notes for our details or go onto the website, wwwsmartdivorcecouk. Also, if you are listening on Apple Podcasts or on Spotify and you wouldn't mind leaving us a lovely five-star review, that would be fantastic. I know that lots of our listeners are finding this is incredibly helpful in their journey through separation, divorce and dissolving a civil partnership. Also, if you would like some further support, we do have a Facebook group now. It's called Separation, divorce and Dissolution UK. Please do go on to Facebook, search up the group and we'd be delighted to have you join us. The one thing I would say is do please answer their membership questions. Okay, have a great day and take care.