Tuesday, November 27, 2007

A Definite Maybe

It can sometimes be a nightmare advising clients upon financial settlements on divorce. Parliament has just given us a very basic outline as to how settlements should be calculated, with the result that we rely upon case law for the specifics. We lawyers therefore scour the case law hoping to find clear guidance upon particular matters. Unfortunately, clear guidance is rarely to be found. Take for example the simple and common problem of how to approach inheritances - should they belong to the party who received them, or should they go into the matrimonial 'pot' for division?

I don't propose to go through the law on this point, but yesterday I read the case of Berkeley v Bulliqi [2007] EWCA Civ 1101 (thanks again to Family Law Week), hoping for some enlightenment. What I found, in the judgement of Lord Justice Hughes, was the following:
good reason to [depart from equality] may be found in the source of the family's money, if it was inherited or provided by one spouse from resources acquired independently of the marriage, and especially if before the marriage
Great, that's clear then: inherited money should belong to the recipient. However, I read on and find this:
in a particular case there may on the facts be a justification for an equal sharing, despite the fact that a significant part of the available wealth was derived from inheritance rather than from joint effort
In other words, we are back to 'maybe', or 'it depends'.

OK, I'm being a little facetious above (previous case law already indicated a 'maybe' answer), but I set it out to illustrate the problems faced when called upon to advise on financial settlements. I know it's a point I've made on more than one occasion previously, but surely it must be possible for parliament to give some clearer statutory guidance?

10 comments:

  1. I strongly suggest that you read the whole thing again. There are no "maybes" here. What LJ Hughes was stating was that James Turner QC fully accepts that there are cases where the fact that the money was inherited does not change the need for the now imfamous yardstick. However, the reason that I was given the appeal was on the merits of my case - that the punative judgment against me was "sufficiently arguably unfair", "sufficiently surprising" and "there exists a compelling reason for this court to hear the case".

    I was both the husband and the wife in the marriage. I provided all capitol, manufactured a job for an ex-husband who was disinterested in earning a living, lost my own career in the music business as I became chronically ill when I got pregnant and then stayed home with our child, only going back to university to re-train when the child was aged 11, my attendance there being only part-time. I dedicated myself to being a good and involved mother - where the boy's father did the minimum at all times.

    In addition, I put up with years of domestic violence, in order to try to save the marriage and give my son a father in the house. Not that any of you legal types give a toss about my suffering or my personal trimuph in overcoming constant fear.

    No maybes here at all! The only maybe is that maybe you don't read English well or read what you want to read.

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  2. Many thanks for that - I have read the full report and am fully aware of the reasons for the decision, but my post was not about the decision itself, as you will see if you read the post again.

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  3. No, I read your post quite clearly. You are saying that LJ Hughes did not give definite direction on a point, that he muddied the water, and that there is a maybe here. As to the problems lawyers face when advising their clients? Look to your what moral beliefs you have and advise, argue and fight accordingly. Moral bankruptcy is the cause of the current muddied waters.

    You also seem to have misunderstood, as I said, that "LJ Hughes was stating was that James Turner QC fully accepts that there are cases where the fact that the money was inherited does not change the need for the now imfamous yardstick". He was not saying the water was muddy, just that my side fully understands that there are cases where the law needs to be applied differently than it should have been applied in my case.

    One example I can think of: say a mother leaves the money to her daughter when her daughter has been in a marriage for...15 years. Let's say that the husband claims that he was very close to his mother-in-law for all of that time. Let's further say that the husband can provide collaborating evidence for this - let's say the sister of the wife has to admit under cross examination that yes, their mother may have intended that some of the inheritence go to the husband because the mother thought highly of the husband and was close to him too. I'm sure you take the point.

    Or let's take the case that was around in the late 80s/early 90s of the wife who had a great career on a fantastic salary. The husband became disabled and was so infirm that he could not work at all by the time of the divorce and he fully evidenced this. Yes, he got quite a chunk.

    It may interest you to know that the original trial judge in my case was the judge who found against Louise Hamilton last year. She was the old woman in Richmond who, irate that a rich man had parked in her garden, scratched his car with her pen when she wrote "And not in my garden". Do read about this in the Times on the link below. There are similarities in the cases that may well come back to bite that judge where it really hurts. One of my wishes for the future is that I can give Louise Hamilton some satisfaction, even if I can't get her money back for her.

    It also may interest you to know that I am writing a book with a published author. One of my other wishes for the future for others is that I can show women that they don't have to be afraid or lay down and die and accept what is done to them. Sharia law will not rule this country.

    http://business.timesonline.co.uk/tol/business/law/article736552.ece

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  4. "You are saying that LJ Hughes did not give definite direction on a point, that he muddied the water, and that there is a maybe here." - No, that is not what I'm saying.

    "there are cases where the law needs to be applied differently than it should have been applied in my case" - my point exactly. The difficulty, of course, lies in deciding how the law should apply to a particular case - this is where some statutory guidance would be useful.

    I note what you say regarding morality, but unfortunately law and morality do not always coincide.

    I wish you luck in your writing venture.

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  5. "I note what you say regarding morality, but unfortunately law and morality do not always coincide."

    That is not what the public, who are the people who pay the wages of you, judges and all public servants, think. The public think that morality should be guiding the law, not the law guiding morality.

    "The difficulty, of course, lies in deciding how the law should apply to a particular case - this is where some statutory guidance would be useful."

    You have tools at your disposal to do this - reason. The ability to reason and be rational is unique to mankind and yet is so rarely used. See The Ayn Rand Institute online for further study.

    E.g., do you really not see the problems that my case and Louise Hamilton's case throw up?

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  6. You are probably right that the public think that morality should be guiding the law. Unfortunately, lawyers (with the arguable exception of judges) do not make the law - they have to work within it. The same thing applies to your point about reason.

    If there had been clear statutory guidance as to how to deal with inherited property on divorce, then perhaps your case would not have gone as far as it did.

    I note with interest your reference to the Ayn Rand Institute - I once did a test to see whose philosophy most closely matched my own, and the answer was Ayn Rand!

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  7. A closet Objectivist then? ;-)

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  8. Actually, the guidance is clearer than you and others like you think. The judge in my case chose to ignore the law.

    As an Objectivist, closet or otherwise, why do you and others not practice what you preach? So to speak. Or, practice in line with your personal ethics?

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  9. I am talking about statutory guidance, rather than case law, which is subject to change and often difficult to interpret. If there had been clear statutory guidance, the judge in your case may not have fallen into error.

    I'm sure most lawyers try to practise in line with their personal ethics, but that has no bearing upon the system of laws that they have to work within.

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