Tuesday, July 24, 2007

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?

4 comments:

  1. Good to have you back...

    I'm afraid that I can take no more of Sir Liam Donaldson... and have decided to self prescribe Rioja this evening... in fact... I am going to have another one.

    Trust you had a good holiday.

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  2. Thank you Charon. I hope the Rioja eased your symptoms. The question is - what do the masses prescribe themselves when alcohol is no longer allowed/affordable?

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  3. Don't know that I entirely agree with you.
    If one party is agreeing to an order that is so clearly unfavourable to them and in consent applications when it would be impossible to be sure there was no unfair pressure or threats against that party, why should society sanction such an agreement? There is nothing to stop them carrying out the terms of the agreement, and relying on the goodwill of the other spouse. But if they want "closure", then the obvious alternative is to agree terms that are reasonable!

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  4. I agree that the judge and advising solicitor would have to consider whether there has been duress or undue influence, and the court should refuse to make the order in those circumstances. However, it is usually obvious where this is the case, and in any event the matter could always be reopened later if duress/undue influence was proved.

    The simple fact is that there are many people out there who take a different view to the law as to what is fair and reasonable, or who simply think there is more to life than money or material things - why should they not be allowed to draw a line and move on, just because others choose to abuse the system?

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