Friday Review: Of pre-nups, horses and toffs

A brief end-of-week roundup:

I liked this article in The Guardian today, questioning the value of pre-nuptial agreements, in the light of the Luckwell v Limata decision. It refers to James Ferguson of Boodle Hatfield who "points out, if protecting your assets are what you are chiefly concerned about, then in reality the only way to do so is to not get married." Excellent advice.

It has been suggested that Mr Justice Mostyn's decision in Mann v Mann moves compulsory mediation a step closer. His use of an Ungley Order (has Master Ungley never heard of a change of name deed?) should certainly encourage the parties to mediate, but does not compel them. For my part, I have always been against compulsory mediation - it seems to be a contradiction in terms. After all, you can take a horse to water...

So lawyers are 'striking' again today. I wish them well, but I fear they are unlikely to achieve their aims. To succeed they need to get the public firmly behind them, and there is no chance of that whatsoever. Of course, it is true that the public will want legal help when they need it, but until then the vast majority of them view the profession with little short of contempt, and seeing a bunch of be-wigged toffs picketing outside a court (even without their Mulberry handbags) will do nothing to alter that view.

Have a good weekend.

Wednesday Review: It's all about the money

A couple of pecuniary things...

Unsurprisingly, practitioners have warmly welcomed the response of the Senior Judiciary to the Ministry of Justice's consultation paper on reform of court fees (see, for example, this post on Pink Tape), in which they 'savaged' the Government's proposals to increase fees. As to the proposal that the fee on a divorce petition be increased to £750 the judiciary did not agree with this, pointing out that some people may not be able to afford to divorce, meaning that they would be forced to cohabit when they formed new relationships. All of which is particularly ironic given the second thing I wanted to mention:

Lord Freud

It seems that the 'cost of family breakdown to the country' is becoming a real bandwagon. The latest suspect to jump on is welfare minister Lord Freud, who claims that it could be costing the country up to £46 billion a year. £46 billion. I hope that makes all those awful people who have been selfish enough to allow their families to break down feel guilty. Speaking in the House of Lords, he also said that the Government should actively attempt to reverse what he called “major structural changes” in society away from marriage and towards cohabitation. More social engineering from those who know best. Anyway, isn't this the same Lord Freud whose book describing his lucrative career in the city has been described as "morally ambiguous" and who was criticised in The Guardian for his "withered meanness" in attempting to link the rise in food banks to greed rather than poverty? Hmm...

Internet Newsletter for Lawyers March/April 2014

The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue

• Marketing – Susan Hallam stresses the importance of setting up and verifying local business listings on Google
• Legislation – John Sheridan explains what the Big Data for Law project aims to achieve for legal researchers
• Twitter – Claire Cavanagh at ECJ Legal shows how Twitter can be used to best effect for law job seekers
• Social media – Mindy Gofton of I-COM describes what social media monitoring is and the best tools to use
• Law firm websites – Jon Curtis of Ironmonger Curtis on the benefits of law firms providing SaaS and how to go about it
• Languages – Susan Isaacs looks at readily accessible European language resources covering legal topics
• Resources – Ruth Bird of the Bodleian Law Library on free European law sources
• Blogs – Cathryn Hopkins on UKSC Blog

Access the Newsletter online at http://www.infolaw.co.uk/newsletter/.

The RSS feed of latest articles is at http://www.infolaw.co.uk/newsletter/feed/.

@familylaw: Eight thousand five hundred followers can't be wrong...

...well, maybe they can, but at least the followers of my @familylaw Twitter feed are keeping up with all the latest happenings in the world of family law, and there are now over eight thousand five hundred of them.

For those who don't already know (where have you been?), @familylaw feeds all news items, cases and articles from Family Lore Focus on to Twitter, thereby providing a convenient way to stay up to date.

You can also keep up to date by subscribing to the free weekly Family Lore Focus Newsletter here - all that is required is your name and email address. The Newsletter will appear in your Inbox every Monday morning, and will stop you missing anything that you didn't catch on Twitter.

To recap, Family Lore Focus is essentially a site that aggregates freely available family law content from the web, including news, cases, legislation, articles and blogs. Regularly throughout the day I check every source that I am aware of including family law sites, general law sites, blogs, newspapers, Bailii and many others, and post links to items of interest. The most recent links can be found on the front page of Family Lore Focus, and older ones on the relevant blogs: Family Lore News, Family Lore Case Digest, Family Lore Articles, and Family Lore Blogs.

In short, Family Lore Focus, @familylaw and the Newsletter provide a one-stop gateway to keep you updated with all the family law developments you need, without having to search different sites for them.

If you would like to advertise on Family Lore Focus, the blogs or the Newsletter, then email me.

[Post again blatantly copied from earlier ones, with minor amendments.] 

I said he's everywhere!

Friday Review: Marriage and relationship advice

It's been a funny old week. Not so amusing, perhaps, for the members of Renaissance Chambers, who find themselves the latest victims of the legal aid cuts, but there have been other things happening of note (or maybe not).

For example, a story has been floating around in the gutter press over the last couple of days about some spat between two 'top' divorce lawyers. I would tell you all about it, but I lost the will to live before I got to the end of this article in the Daily Fail. If you are sad enough (a) to be interested in such things and (b) to read the Daily Fail, then head over there for all the exciting details (remarkably, the story has also appeared in a certain more 'reputable' publication, but that is behind a paywall, so I won't provide the link).

Moving swiftly on, the big news of the week was of course the publication of the Law Commission's eagerly-awaited report upon Matrimonial Property, Needs and Agreements. For the details see my post below, and if your attention span can't last that long, here is the best summary I came across on Twitter:

Condensed read: 1. Pre-nups should be binding but not in respect of needs 2. As to needs, err... can we get back to you? #LawCommission
— Alexander Chandler (@familybrief) February 27, 2014

As for my views on the report, I wasn't that impressed. As the above tweet suggests, the only real recommendation for a change in the law relates to pre-nups. However, I have never been particularly interested in pre-nups myself. In fact, my advice for anyone whose betrothed asks for a pre-nup is to call the wedding off, as they obviously care more for their money than for you. Whatever happened to 'what's mine is yours' and all that?

I shall end with another piece of advice. If, like me, you're constantly fascinated by all of those wonderful news stories informing us of what is or isn't good for relationships, you will no doubt find this of interest (thanks, David): Secret of successful relationship is getting pissed together.

Have a good weekend.

Law Commission report on Matrimonial Property, Needs and Agreements published

The Law Commission has today published its much-anticipated report on Matrimonial Property, Needs and Agreements.

Here are the 'headlines':

Financial needs - The Commission recommends that the Family Justice Council produce authoritative guidance on financial needs. The guidance would explain that, when determining a settlement, a judge aims to enable both parties to make a transition to independence.  This would enable couples to reach an agreement that recognises their financial responsibilities to each other, and reflects what the law says on how this should be done. Guidance would also help to reinforce consistency to how the law is applied in the courts, increasing public confidence in this area of the law.

The Commission also recommends that work be done with a view to assessing whether formulae that generate guideline amounts for payment from one former spouse to another could be devised.

Marital property agreements - The report recommends that legislation be enacted to introduce “qualifying nuptial agreements”. These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution.  In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met. Qualifying agreements could not, however, be used by the parties to contract out of meeting the “financial needs” of each other and of any children.

Non-matrimonial property - The Commission has not made any recommendations about reform relating to non-matrimonial property. Where the parties to a marriage want to achieve certainty in advance about the continued ownership of non-matrimonial property they should be free to make contractual arrangements to that effect, without having to submit their agreements to the courts’ assessment of fairness.

Here is Law Commissioner Professor Elizabeth Cooke discussing the recommendations:



The full report can be found here, and a summary here.

No doubt every legal hack in the business and their spouse will soon have written a piece about the report. Below are links to a couple:

This is Hayley Trim's analysis at Family Law.

And here is Spencer Clarke, Lawyer in the Property, Family and Trust Law Team at the Law Commission considering the key recommendations of the report on Family Law Week.

Grim

Family set blames legal aid cuts for closure - Law Society Gazette, 24th February 2014

SA v PA: Mostyn J considers pre-nups and compensation

Mr Justice Mostyn

In SA v PA (Pre-marital agreement: Compensation) [2014] EWHC 392 Mr Justice Mostyn considered, as the case name suggests, two issues: a pre-nuptial agreement (which had been signed by the parties in Amsterdam on the day before the wedding) and the wife's claim that her periodical payments award should be significantly enhanced by reference to the principle of compensation as explained by the House of Lords in McFarlane v McFarlane [2006] UKHL 24 [2006].

I do not propose here to go through the facts of the case, or even the details of Mr Justice Mostyn's decision. Instead, I thought it would be useful to briefly outline what he had to say regarding the legal principles on those two issues.

On the treatment of pre-nuptial agreements he of course referred to the test propounded by the Supreme Court in Radmacher v Granatino:

"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

He then referred to his own previous attempts to summarise the principles, in Kremen v Agrest and B v S. These are set out in paragraphs 11 and 12 of this judgment.

In particular, he stated that there was no requirement to have received specific advice as to the operation of English law on the agreement in question, and that this proposition had been specifically approved by Moor J in AH v PH.

To those principles he added:

"Finally, it is clear that a marital agreement does not have to deal with all aspects of the parties' resources in order to be presumptively binding over the assets or resources which it addresses."

Moving on to the issue of compensation, he summarised the position neatly at paragraph 36:

"Obviously I am bound by the decision of the House of Lords. However, in the light of the later authorities, I think that the principles concerning a compensation claim can properly be expressed as follows:-

i) It will only be in a very rare and exceptional case where the principle will be capable of being successfully invoked.

ii) Such a case will be one where the court can say without any speculation, i.e. with almost near certainty, that the claimant gave up a very high earning career which had it not been foregone would have led to earnings at least equivalent to that presently enjoyed by the respondent.

iii) Such a high earning career will have been practised by the claimant over an appreciable period during the marriage. Proof of this track-record is key.

iv) Once these findings have been made compensation will be reflected by fixing the periodical payments award (or the multiplicand if this aspect is being capitalised by Duxbury) towards the top end of the discretionary bracket applicable for a needs assessment on the facts of the case. Compensation ought not be reflected by a premium or additional element on top of the needs based award."

He went on:

"Having regard to what I said in B v S at paras 73-79 it will be apparent that it is my firm belief that save in highly exceptional cases an award for periodical payments should be assessed by reference to the principle of need alone."

For the record, he found: (a) that, subject to "the critical question of maintenance", it would be fair to implement the capital division specified by the agreement and (no surprise here): (b) that this was not a compensation case.

Friday Review: Mercifully quiet

It's been a mercifully quiet week for family law happenings. Perhaps everyone has jetted off for a half-term sojourn in the sun. Or maybe they're just gearing up for the big family law news event next week, when the Law Commission's report on Matrimonial Property, Needs and Agreements is published. Certainly, plenty of family lawyers seem to be wetting themselves on Twitter in excited anticipation.

Brave man

Lord Wilson, however, has been busy, and you have to admire him for what he has been up to. To give a speech in Belfast in which you profess the view not just that gay marriage is good for marriage generally but also that divorce can have its benefits must have taken some guts. Talk about going into the lion's den. I wonder, also, what Sir Paul Coleridge thought of it?

Lastly, @nickholmes and I had this somewhat surreal exchange on Twitter yesterday. I think one of us may have lost the plot, although I'm not entirely sure which one (click the link on the second tweet):

Why can't all judgments begin with an explanation of what they are about, perhaps even a headnote?
— John Bolch (@johnbolch) February 20, 2014

@johnbolch I agree with dat http://t.co/Q0zFfWNBFY
— Nick Holmes (@nickholmes) February 20, 2014

@nickholmes Yo dat Neuberger sho knows what he's jivin' about and shit!
— John Bolch (@johnbolch) February 20, 2014

Have a good weekend.