Wednesday, May 31, 2006

Cohabitees' Rights

Law Commission The government has asked the Law Commission to prepare a consultation paper looking into the rights of cohabitees. According to BBC News cohabitees could be allowed to make the same kind of claims as divorcees, albeit on a less generous basis. No doubt there will be some who will say that this is just another erosion of the institution of marriage, although I think most will welcome it. Indeed, many people seem to believe that cohabitees already have such rights - like the lawyer mentioned in the BBC report, I have had numerous clients come to me over the years with the erroneous belief that they have acquired such rights merely by living with their partner for a certain length of time.

How to build a website

I suppose I shouldn't advertise other firms' websites, but I can't resist this one, mentioned recently on geeklawyer. The firm has the slightly unlikely sounding name of Buglear Bate and Co, but they are real - I checked at The Law Society(!). When I first visited their site my initial thought was 'these people haven't got a clue how to build a website'. How wrong I was...

Tuesday, May 30, 2006

M & M: Family Law for All?

As expected, journalists and family law pundits have started a feeding frenzy at the bowl of Miller and McFarlane. Over the weekend virtually every newspaper contained an article examining the effects of the judgment for the future of family law, including the Times, the Guardian and the Independent.

As I have mentioned before, I am a little sceptical of just how much another big money judgment will affect most divorcing couples. Like the vast majority of family lawyers in this country, most of my clients are of average means: three bed semi, 2.5 children, average income, little or no savings, modest pension. We are all supposed to follow precedents, i.e. cases decided by the higher courts. Unfortunately, however, most people cannot afford to use the higher courts, so most precedents we have involve people with wealth that bears no relation to my clients' means - just how valuable are these precedents to them? Only time will tell.

Still, no doubt the experts will make plenty of money selling books and seminars to lawyers, telling us how important the judgment is.

Wednesday, May 24, 2006

The Wives Have It

The long-awaited House of Lords judgment in the Miller and McFarlane appeals has been published today, amid a frenzy of media interest. In both cases the wives have been successful. However, whilst I have not yet had time to study the judgment, I was pleased to read that Lord Nicholls accepted Mr Miller's contention that both the judge and the Court of Appeal misdirected themselves on the 'conduct' issue - to have non-extreme conduct such as adultery dragged in to the arguments over financial issues would have been a disaster. Instead, his Lordship justified the award to Mrs Miller "largely for two reasons": the increase in the Mr Miller's wealth during the (short) marriage and the high standard of living enjoyed by the parties during the marriage, a standard Mrs Miller would have been unlikely to achieve for herself.

The judgment will no doubt spark much debate in the weeks and months to come.

Sunday, May 21, 2006

Family Law: A Lottery?

Fathers 4 JusticeSo, Fathers 4 Justice are back. They had disbanded in January following the furore over the alleged plot to kidnap the Prime Minister's son Leo (see my post here), but, according to their website "today a wider Fathers 4 Justice movement continues the work of the original group". Last night they staged one of their most audacious protests yet, invading the BBC's National Lottery studio. For details of the story and a video of the protest, see the BBC NEWS website. The story quotes a spokesman for the group, Guy Harrison, who said that "the lottery is a metaphor for what can happen to any parent, mother or father, and their children, at the hands of the secret family courts".

Their idea of family law being a lottery is nothing new (although you have to hand it to them for making the point in this way), but what interests me is the reference to the "secret family courts". I don't know whether this has always been a point of protest for the group, or whether they are just jumping on the bandwagon, but transparency in family proceedings is, of course, currently a 'hot topic'. The issue was the subject of a Department for Constitutional Affairs press release on the 27th October last, and has been debated considerably since, including by the House of Commons Constitutional Affairs Committee in a one-off evidence session into the operation of the family courts on 2 May last. It seems likely that change is on the way, but it must, of course, be properly thought through. Greater openness in the family courts may help the public to understand how they work, but the rules are there for good reasons, in particular to protect the children themselves.

Thursday, May 18, 2006

All you need is...a large bank balance

The news that the breakdown of his marriage to Heather Mills could cost Sir Paul McCartney £200 million has reopened the debate about the fairness of divorce settlements, particularly after short marriages - see, for example, articles today in the Telegraph and the Times. The timing could not be more appropriate, with the House of Lords judgment in the Miller and McFarlane appeals to be read out next Wednesday.

We all wait with baited breath, although as usual it will remain to be seen how relevant a judgment in a big money case is to most of our clients, who can only dream of such wealth.

Wednesday, May 17, 2006

Why are we waiting...

Her Majesty's Delays Service Whenever I meet other solicitors at court the topic of conversation inevitably turns to delays in the Courts system. It seems everyone has a story (or several) to tell involving an absurd length of time that they have waited for the court to deal with some particular matter. Typical examples involve consent orders that have been with the court for months, or legal aid bills filed last year that still haven't been assessed. These delays can cause real hardship, not just for clients but also for cash-strapped legal aid firms waiting to be paid.

Don't get me wrong, I'm not blaming the staff or judges - they are doing a hard job under difficult circumstances (although it is amusing how litigants and their solicitors are instantly penalised by the court for missing any time limit). The blame, as usual, lies with the government for not providing the resources needed to properly staff the courts, and things are only going to get worse, as mentioned in my post here. It seems that the government's answer is to impose draconian increases in court fees (as I have also mentioned previously), in an attempt to discourage people from using the courts.

So, it seems that we are either going to end up with a second-rate system, or we are going to have a system that is only available to those that can afford to use it - or perhaps we will end up with both. Or am I just being cynical?

Friday, May 12, 2006

Family Mediation Helpline

Family Mediation Helpline Yesterday Family Justice Minister Harriet Harman launched the Family Mediation Helpline. The helpline, which has been operating on a trial basis since January, aims to inform separating couples of mediation, help them decide whether mediation is appropriate for them and assist them in finding a local mediator. The helpline is available by calling 0845 60 26 627, or by visiting the website (link above). Up until the end of April the helpline received some 435 calls and made some 109 referrals to mediators, with the volume of calls expected to increase substantially now that the helpline has been officially launched. It will certainly be a useful place to direct clients interested in mediation.

Thursday, May 11, 2006

Expanding Blawgosphere

I don't intend my links to other legal blogs to be comprehensive (readers would soon get tired of scrolling down the page), but I have just added links to three other UK legal blogs (or 'blawgs' to the cognoscenti):

Firstly, Diary of a Criminal Solicitor by a criminal defence solicitor from London who identifies himself only as 'Gavin'. This blog has been going since May last year, although has only just come to my attention. As Gavin says, he uses the blog to vent his anger and share his joy with the experiences that he encounters when working as a criminal solicitor. More anger than joy then, I guess.

Secondly, the Times Online Law Weblog. Not the usual private-practitioner-giving-his/her-personal-experiences type of blog, but a blog by (currently) four authors described as "your regular dose of legal news and comment, updated throughout the day".

Lastly, UKBlawgers, a new blog by Steve Butler of UKLawyers Legal Newswires, which is described as "the leading weekly general legal newswire for lawyers".

Wednesday, May 10, 2006

Getting even

Over the years I've come across many ways that people get back at their former spouses. I remember for example a case dealt with by my then firm where the husband, who still lived in the former matrimonial home, returned from holiday to find that his ex-wife had painted the front of the property bright green! The latest example comes from Australia where Alison Summers, the former wife of author Peter Carey claims that he has written her into his latest novel, as the avaricious ex-wife of the hero of the book, who she also claims has similarities with Carey himself. Carey denies these claims.

Naturally, Summers is upset, but it is amusing to note that she is also writing a novel - about woman who realises after many years of marriage that her husband is not the man she thought he was! Of course, she insists that the story is not modelled on her marriage to Mr Carey.

For further details of this story, see this article in the Guardian Unlimited.

Monday, May 08, 2006

The Internet Newsletter for Lawyers

Family Lore is pleased to have received a mention in the May/June 2006 issue of the Internet Newsletter for Lawyers. In an article entitled "Is Blogging Good for Business?" Nick Holmes of infolaw lists Family Lore, Human Law and The Landlord Law Blog as 'notable examples' of blogs by sole practitioners or from small firms. Many thanks to Nick for the mention.

The Internet Newsletter for Lawyers is by Delia Venables who runs Delia Venables Legal Resources. If you are a lawyer interested in how the internet can help you in your work and business, I would recommend subscribing. For further details see here.

Good news for husbands

If passed into law, the Family Law (Property and Maintenance) Bill will (inter alia) abolish the common law duty of a husband to maintain his wife. The bill was introduced by Rob Marris, Labour MP for Wolverhampton South West, to give spouses greater equality and (in his words) to remove "discrimination against men".

Many husbands will be sleeping easier in their beds, but don't tell them that the duty was unenforceable anyway!

Friday, May 05, 2006

What value the Protocol?

I have mentioned the Family Law Protocol previously (see this post and this post). As stated in the preface to the second edition, the Protocol is the standard by which the Law Society's and Resolution's panel members are judged, and to which Legal Aid practitioners are expected to practise. Despite this, I regularly come across such people flagrantly disregarding the Protocol. The most common example is in relation to the issue of divorce proceedings. Paragraph 2.4.1 (e) of the Protocol states that prior to the commencement of proceedings solicitors should provide respondents or their solicitors "with the fact or facts on which the petition is based and the particulars, with a view to coming to an agreement or minimising misunderstanding unless there is good reason not to do so". Paragraph 2.6.2 (a) goes on to state that before filing the statement of arrangements for children "a copy should normally be sent to the respondent's solicitors (or respondents where unrepresented) for approval and a reasonable time should be allowed for reply". These provisions are often not followed, which can have the effect of starting the divorce proceedings off on completely the 'wrong foot', thereby increasing the chance of conflict between the parties and reducing the chance of settlement.

I realise that there are times when there are good reasons not to comply with the Protocol, but, as also stated in the preface, notes of those reasons should be stated on the client's file. I wonder how often this happens.

It seems that too many family lawyers are merely paying lip service to the Protocol. Until such time as there is a proper sanction for failure to comply with the Protocol without good reason, it will continue to be extremely difficult to explain to clients why we have a Protocol at all.

Thursday, May 04, 2006

Jobs for the boys department, # 2

Department for Work and PensionsReports seem to be sprouting from the Department for Work and Pensions like England flags on the cars of the masses. For those with even more time on their hands, may I recommend the 396-page: "Families with children in Britain: Findings from the 2004 Families and Children Study" which deals with the characteristics and circumstances of families with children in 2004. I won't even try to read or comment on this one, although I liked some of the definitions, such as 'lone father' ("a male lone parent"), 'lone mother'("a female lone parent"), 'mother' ("in the vast majority of couple families this person was female") and, best of all, 'not working' ("no work (i.e. working zero hours)").

Jobs for the boys department

Department for Work and Pensions For those of you with plenty of time on your hands, the Department for Work and Pensions has published a 164 page report entitled "An investigation of CSA Maintenance Direct Payments: Qualitative study". The report presents the findings of a study into the suitability of 'maintenance direct', whereby child maintenance payments are paid by the non-resident parent direct to the parent with care, rather than through the Child Support Agency. Personally, I don't have that much time on my hands (or if I do, I have better things to do with it), so I haven't read the whole report. However, I can tell you that it's key findings contain such profundities as that maintenance direct will be more difficult to promote to parents who lack trust in their ex-partners and that "some parents had experienced a range of problems with the CSA, including missing or delayed payments, administrative difficulties and poor customer service". Really?

Reminds me of a Basil Fawlty quote: "Can't we get you on Mastermind, Sybil? Next contestant - Sybil Fawlty from Torquay, special subject the bleedin' obvious".

Wednesday, May 03, 2006

"Marriage, greed and revenge"

Two articles on the subject of divorce settlements have appeared in the Times Online in the last few days.

The first article, which appeared in the Sunday Times on the 30th April, reports on the increasing number of high-earning 'superwomen' who are having to pay out large settlements to their lower-earning (ex-)husbands. As far as I'm concerned, there is little news here (apart from the fact, perhaps, that there are now more such women than previously): contrary to the belief of many clients, the rules do not, of course, discriminate between men and women. The large post-White v White settlements that many husbands have complained about can equally happen to the wife.

The second article, which appeared in the Times on 2nd May, is more interesting. It is a discussion with top family barristers about "marriage, greed and revenge". Although inevitably much of the discussion relates only to 'high-value' divorces, there are some nice snippets. For example, Nicholas Mostyn, QC (who I am delighted to learn smokes Marlboro Lights, like me) "rejects the view that London is the divorce capital of the world as "melodramatic hyperbole"". Later on, there is some good advice from James Turner, QC who advises parties to settle if they can and says: "However much you may want to bitch and have a go at the other side, tear them limb from limb, it’s going to cost you a lot financially and emotionally if you go down that path. Six months down the line, you won’t feel the same."