Cohabitation Report published

As anticipated, the Law Commission today published its report Cohabitation: The Financial Consequences of Relationship Breakdown. The Report rejects calls that cohabitants should be given the same rights as married couples and instead "recommends the introduction of a new scheme of financial remedies which would lead to fairer outcomes on separation for cohabitants and their families". Key features of the scheme are that those remedies should only be available where:

• the couple had had a child together or had lived together for a specified number of years (the Report does not make a specific recommendation as to what the minimum duration requirement should be, but suggests that a period of between two and five years would be appropriate);
  
• the couple had not agreed to disapply the scheme by entering into an 'opt-out' agreement; and
  
• the applicant had made qualifying contributions to the relationship "giving rise to certain enduring consequences at the point of separation" - so that, unlike the position on divorce, duration of the relationship or the needs of the parties would have no bearing on entitlement. Instead, "the applicant would have to show that the respondent retained a benefit, or that the applicant had a continuing economic disadvantage, as a result of contributions made to the relationship". The court would then have a discretion to "grant such financial relief as might be appropriate", having regard to these matters.
  

Comment to follow!

No bias here

On a number of occasions since I started this blog I have heard from fathers' rights campaigners who have expressed the opinion that the system, including solicitors, is completely biased against them, a view that I do not accept. Well, here's a recent case that may make some rethink, found in an article written for Family Law Week by John Tughan of 9 Gough Square. In Re C (Residence Order) the Court of Appeal dismissed the appeal by a mother against an order transferring residence of the child to the father, after she had refused contact between the child and the father since October 2003, resulting in the father becoming a 'virtual stranger' to the child. The Court of Appeal stressed the importance of courts acting robustly in cases of failing and/or failed contact.

Transfer of residence to the other parent is one of the most serious weapons in the court's armoury against parents refusing to allow contact. I accept that it is rarely used (partly because it is not always practical, for example where the 'absent' parent is in no position to look after the child full-time), but if it became more widely known that the courts are prepared to make such orders, then more parents will obviously be discouraged from disobeying contact orders.

[I've not found a report of this case, but if I do, I'll give the citation, and a link, if it's online.]

[Edit: Thanks to bloody relations for the citation, C (A Child) [2007] EWCA Civ 866, and a link to the report, here.]

And now there were six (at least!)

Whilst tinkering with the blog this weekend I've come across yet another family law blog, found on Jacqui Gilliatt's blogroll. The Benussi Blog is written by Diane Benussi, senior partner at niche Birmingham matrimonial law firm Benussi & Co, and has been running since last October. With the tag "matrimonial and family law with the emphasis on discretion and care", the blog is very much a showcase for the firm, but nevertheless contains much excellent advice for non-clients.

Diane also has the good taste to use the same blog template as Family Lore!

Smug post

Just a quick footnote to my rant about the misuse of the term 'registry office' from a few months back. Today I found out that the divorce petition in one of my matters (prepared by the other side I hasten to add) was rejected by the court, one of the reasons being that the term 'registry office' had been used when it should be 'register office'. So perhaps I wasn't just being pedantic after all...

Grasping the nettle

As reported in The Times today and elsewhere, the Court of Appeal has found in favour of Dennis North, who was appealing against the decision last year to award £202,000 from his retirement fund to his ex-wife, Jean North, whom he divorced in 1978, although Mrs North may yet receive "some modest award". This well-publicised case raises two important and linked issues:

Firstly, it brings the law into disrepute when it seems to be so manifestly out of touch with the public perception of 'fairness'. The media has jumped on the basic facts: wife commits adultery, leaves husband to bring up the children, husband provides generously for her, wife gets into financial difficulty after living an extravagant lifestyle beyond her means, so wife comes back many years later for a 'second bite at the cherry', and wins. The Court of Appeal may now have put this right, but the damage has been done.

So why did the court below come to its decision? This brings me to my second point. The simple fact is that the law on financial settlements after divorce is now so uncertain that it has become a lottery. I won't criticise the District Judge in this case - he was working with a system in which Parliament gave very little guidance and so we have to rely upon a lengthening series of often conflicting judgments from the higher courts. There is now a clear need for statutory clarity in this important area, but unfortunately there appears to be no governmental will to grasp the nettle.

Nanny knows best

As a smoker now banished outside like some naughty child, I have recently become acutely aware of the 'nanny state' in which we now live. I've now caught up with some of my missed reading from last week when I was on holiday, and was interested to read the Comment column in the Gazette, which suggests that such treatment of mature adults extends to divorce settlements.

In the column Damian Baron, head of family law at Napthens in Preston, refers to the recent Charman decision and berates the fact that the law will not enforce pre-nuptial agreements, with the result that wealthy individuals are discouraged from getting married. He says: "Should the law not now allow intelligent human beings with quality legal advice to agree the regulation of financial provision in the event of a break-up?"

Unfortunately for my fee income, I do not have any clients with the sort of wealth of Mr Charman, but I have seen a similar scenario of the courts saying "we know best", even where the parties are quite happy to sort things out their own way. The scenario to which I refer relates to consent orders, where the parties have agreed a financial/property settlement on divorce, but need the order to be made, to ensure the settlement is final. However, the court will only make the order if it considers that its terms are broadly reasonable in the circumstances, with the result that some orders are refused, even where both parties are in full agreement and fully understand their positions, having taken independent legal advice. The parties are then left in a limbo, with no 'closure' to the matter. Surely, if the judge makes it quite clear that he/she considers the settlement to be unfair, and the parties still give their written consent having taken (or had the opportunity to take) independent legal advice, then they should be treated as mature adults and be allowed to proceed as they wish?

Normal service will now be resumed

I'm afraid I returned to sunny England today, so 'normal service' around here will now be resumed, or at least it will be as soon as I've got rid of my backlog of work.

Don't you love those post-holiday blues...

The sadness of the long distance blogger

Well, it seems that family law blogs are rather like buses - none come along for ages and then several appear at once. Thanks to bloody relations for the heads-up on the latest, Judith's Divorce Blog. Written by Judith Middleton, a partner at Latimer Hinks of Darlington, the blog "comprises reflections and emotions associated with divorce as perceived by an experienced divorce practitioner but perhaps presented from a slightly different angle". Having read the posts to date, I'd agree with that.

Another new family law blog is Family Law Matters, first pointed out by Nick Holmes of Binary Law. As Nick says, this one is somewhat different "because it’s an example of the blog used as a primary web presence: ie this is the firm’s website, maintained with the blogging service TypePad, with the usual static pages and the Family Law Matters blog as a feature".

I think I'd better reorganise my blogroll, with a separate section for family law blogs.

Right, I've decided it's rather sad to spend my holiday thinking about blogging and family law, so this is the last post I'm doing from Spain... probably.

Bougainvillea Blogging

Just thought I would lift myself from my sunbed for long enough to correct "The Thunderer".

Under the headline "Mother is first lesbian guilty of bigamy", The Times reported the first case of making a false statement to a registrar, by a woman who was still married when she entered into a civil partnership. The headline is incorrect, of course, as bigamy is entering into a marriage whilst still married to another person, and a civil partnership is not a marriage, much to the chagrin of the gay community.

Child abuse, Spanish style

Here's a family law related story that appeared on the front page of today's El Mundo. Luis Miguel Gomez took his ten year old son David to the 'running of the bulls' through the streets of San Fermin. Unsurprisingly, the court took a dim view of this and ordered that David be returned to his mother. Not the sort of facts I'm likely to come across working in Chatham...

Holiday Hiatus 2007

I'm on holiday for the next week, so things may get a little quiet around here. I'm off to Spain, a civilised country where you're still allowed to smoke and the Rioja is cheap (eat your heart out Charon!). What's more, the sun actually shines. I may struggle from my sunbed to write the odd post, we'll see...

Daily Mail Law

Bystander recently made an excellent point about lawmaking in this country in this post. He said:

I have complained time and again over the Government's habit of passing new (and usually useless) laws every time that something alarms the tabloids. Now we have a serious, albeit bungled, attempt to blow up a lot of people and what do we read? The first man to be charged has been charged under the 1883 Explosive Substances Act. I rest my case.

The other side of the coin is good law that is not passed because of the tabloids. In an article in today's Guardian Unlimited Karen McKay, chief executive of Resolution, referring to the opposition to the introduction of a no-fault divorce system, is quoted as saying:

It's a bit like abortion; you can't have divorce on demand. You have to cite certain specified grounds. And that can be highly inflammatory. The Daily Mail seems to have this idea that otherwise, people will go around saying 'Oh, it's Tuesday, I'll go to Sainsbury's and then I'll have an abortion, and now oh look, it's Wednesday, I think I'll divorce my husband.' But it isn't like that.

It seems that we will all be stuck with bad or outdated law, until such time as either people stop reading the bigoted scaremongering rubbish contained in the 'popular press', or we have a government prepared to do what is best, rather than what gets it the most votes.

Domestic Violence Day

The BBC is running a Domestic Violence Day, which aims to raise awareness about abuse in the home. It includes articles about the experiences of one woman at the hands of an abusive husband, the plight of Asian women and, most interestingly, the use by the police of head cameras in a bid to tackle anti-social behaviour and violence in the home. I agree that when they see the film shot by such cameras perpetrators of domestic violence (many of whom still behave aggressively when the police arrive) are more likely to admit their behaviour, and if they don't then the film will be good evidence against them.

Brief family law blawg roundup

Lynne Bastow of DivorceSolicitor has received abuse and even threats in response to this post, apparently from members of fathers' rights group Fathers 4 Justice. If so, and if F4J wants to be respected (and therefore listened to), then it needs to eradicate this sort of behaviour from its membership.

Jacqui Gilliatt of bloody relations has written an informative article for Family Law Week, on the law relating to relocating children to other countries, and within the UK.

Lastly, The Landlord Law Blog is not the place you'd expect to find advice about marriage, but Tessa Shepperson recommends the institution, and advises how to keep the costs of 'getting hooked' to a minimum (I did much the same when I got married). Just one thing Tessa: it's 'Register Office', not 'Registry Office'. Grr.

We know best

In a move that is bound to be controversial if adopted, a Tory policy group is proposing a tax allowance for married couples, which will be worth around £20 a week. It is one of some 200 policies proposed by Duncan Smith's "Breakdown Britain" report, which aims to mend Britain's "broken society".

Whether our society is "broken", and whether marriage is so valuable that it should once again be favoured by our taxation system are matters that will no doubt cause fierce debate. What I don't like is this arrogant "we know best" attitude, whereby one group of society tries to impose its values upon the rest. There are many ways in which people live their lives, and those ways are equally valid so long as they do not affect and are not imposed upon others, whether by force or coercion.

Day 190, week 28: fifty quid

Received a telephone call today from a new client. Let's call her Mrs Ordinary. She was put through by our receptionist - we'll call her Miss Normal - who's not been having an affair with anyone. She didn't mistakenly pass the call to the senior partner - we'll call him Mr CompletelyConventional - who has not had an affair with Mrs Ordinary, so it wouldn't have been hilariously embarrassing if the call had been passed to him anyway.

Well, it turns out that Mrs Ordinary wants a change of name deed.

"No problem", I say.

"How much will it be?" She asks.

"Fifty pounds plus VAT", I say.

"That's O.K", she says.

"Good", I say, eager to clinch the deal. "Give me the details".

She tells me she wants to change her name from Mrs Ordinary to Mrs Mundane. I quickly write the details down and tell her the deed should be ready to sign tomorrow.

"Thank you very much", she says, and hangs up.

I put the phone down and go outside for a cigarette, and to reflect upon the excitement of working in a solicitor's office.

Making the system work

Last week Resolution published a briefing setting out its concerns about the catchily-titled Child Maintenance and other Payments Bill (I've been trying to think of an acronym for the Bill - the best and most appropriate I've come up with (with apologies to our ape cousins) is 'CHIMP'). The briefing goes through the five key areas addressed within CHIMP (private agreements between parents, maintenance calculation, shared care and maintenance, enforcing payment and historic debt & compensation), outlines the Government’s proposed approach, and sets out Resolution’s concerns and recommendations for reform.

One of Resolution's key recommendations is that parents with care should be permitted to take their own enforcement action through the courts, should they so choose. At a stroke this would drastically reduce the workload of the CSA/C-MEC, would empower those parents by giving them control of the enforcement process, and would no doubt reduce the huge amount of unpaid child support. Of course, the government will have two objections, both based upon fiscal considerations rather than creating a better system: that it would overload the courts system, thereby requiring substantial investment in our overworked courts, and that it would lead to a substantial increase in the legal aid budget. However, as Resolution point out, in many cases the court is already examining the family's finances for the purposes of divorce - "the most cost effective and practical course would be to enable them also to cover arrangements for child support payments". Otherwise, if the parent with care does not require legal aid, why not let them finance enforcement proceedings themselves if they wish? Even if legal aid is required, it would surely only be granted if there was a good chance that the enforcement would be successful, and if it is, then the court would also order the paying parent to pay the costs of the proceedings, thereby reimbursing the legal aid fund.

Of course, a cynic may say that as a solicitor I'm just looking to acquire new business (or, to be more accurate, to re-acquire old business that was lost when the Child Support Act came into force), but surely it is more important that we have a system that works?

Cox freed; purple paint sales plummet

According to a Fathers 4 Justice press release, 'Guantanamo Dad' Michael Cox was freed last night, after a successful appeal. Interestingly, he was represented at the appeal by solicitor advocate David Burrows, who I have mentioned here before.

Since he was jailed, Fathers 4 Justice has been running a campaign for Mr Cox's release, including a protest outside the prison, a 'Don't pay the CSA' campaign (including the suggestion that all correspondence with the Agency be in yellow ink, so that they can't photocopy it) and an action plan, which included this somewhat cryptic instruction:

4) Apparently purple prison doors, CAFCASS doors, solicitors doors and post boxes are all the vogue this summer.

I'm not sure what post boxes have done wrong, but there you go.

Roasting the turkey

Today the Public Accounts Committee publishes its report Child Support Agency: Implementation of the Child Support Reforms. It (unsurprisingly) makes damning reading, with Chairman Edward Leigh MP calling the reform of the Agency "one of the greatest public administration disasters of recent times". He goes on:

The facts speak for themselves. More than one in three non-resident parents fail to pay any of the money they owe, amounting to £3.5 billion in uncollected maintenance. Around 230,000 of the almost 250,000 cases where a parent isn’t complying have not been handed to the enforcement arm of the Agency. And 275,000 cases are stuck in the system and so going nowhere.

He calls the agency's IT system "a turkey from day one", which still had 500 defects three years after it was introduced. Most damningly of all he says:

It took thirteen years of failure for the department to reach the conclusion that the Agency was not fit for purpose. During this time, thousands of children suffered; as thousands of absent parents have neglected their duties.

It is hard to think of a body in which the public has less confidence: in 2005-06 alone, there were 55,000 complaints about the CSA.

Of the future, he somewhat worryingly says:

In 2008 the Child Maintenance and Enforcement Commission will replace the CSA. But it is by no means clear how this will benefit citizens or regain the confidence of those the Agency was intended to help. The government must keep an iron grip on this new organisation to ensure that the lessons have been learned from the CSA debacle.

Down memory lane

I’ve been pondering for some time doing the occasional post about changes I’ve seen in family law since that fateful day 25-plus years ago when I first wielded my Dictaphone in anger. Since then there have been many changes (and much has stayed the same), but I’ll begin with something which, unusually, has been completely consigned to history: the affiliation order.

Affiliation orders, with their roots in the bastardy laws, required the ‘putative father’ to pay maintenance for an illegitimate child. Note the words ‘putative father’, rather than simply ‘father’, ‘putative’ meaning ‘reputed’ – i.e. an affiliation order was not proof of paternity (despite this the existence of an order was an exception to the rule that a child support officer could not make an assessment where the alleged father disputed paternity). I’ve long since discarded any text books I had on the subject, but my recollection of the way it worked was that the mother had to adduce evidence which corroborated her allegation that the respondent was the father of her child. Such corroboration usually took the form of an old-fashioned (i.e. non-DNA fingerprinting) blood test which (if memory serves me correctly) could prove that the respondent was not the father, but not whether he was. Once it was established that the respondent was the putative father, the court moved on to determine how much he should pay.

Affiliation proceedings were abolished by the Family Law Reform Act 1987. I remember somewhat selfishly being disappointed by this – for about the first time in my career a (albeit small) body of law that I had learned and practised would be of no more use to me.

The bishop and the virgins

It's amusing how theology goes into contortions every time one of its cornerstones is removed by science, in a struggle to keep the edifice from crumbling, but some theists just don't know when they're beaten. Take the Bishop of Carlisle for instance, who refuses to accept that the recent floods in this country (and deaths caused by the floods) are explained by the science of meteorology, insisting instead that they are god's judgment on society's moral decadence, as pointed out by Dave Cantrell.

There is an interesting and worrying comparison between the Bishop of Carlisle's beliefs and those of the failed terrorists in London and Glasgow, in this column by Thomas Sutcliffe in the Independent. "They both believe in a vindictive God", he says, who "is prepared to kill innocent people in order to get his message across". I particularly liked his image of the effect of the 'wannabe martyr' at Glasgow airport having failed to achieve his heavenly reward: "his 72 expectant virgins currently tapping their fingers impatiently in Paradise".

Pointless?

So, the Child Support Agency has published the first names it wishes to shame. The pages on their website show the names of some of those who have been successfully prosecuted each month for either failing to provide information, or for providing incorrect information to the Agency, with the latest appearing here (previous months can be found from the menu on the left, under 'Recent prosecutions').

It seems to me that these people will only be shamed if someone who actually knows them happens to visit the site, but what are the chances of that? OK, the recipients (or should I say non-recipients) of child support will no doubt tell their friends and family that their former partner has been named, but these people will already be aware of the story.

You may, therefore, think that naming and shaming is pointless. Wrong. Its true purpose is to give government ministers something else to say when asked the question: What are you doing about the child support problem?