Felicitous

I've just received my shiny new copy of The Family Court Practice 2007. What better present could a family lawyer receive on their birthday?

Seriously, if you are a family lawyer and you don't have a copy - why not?

Time for change

The number of people finding this blog by using the search string "Stack v Dowden" since I posted about the case a couple of days ago suggests to me a huge desire amongst family lawyers for some guidance upon resolving cohabitees' property disputes.

When so many people choose to cohabit rather than marry, is it satisfactory that we should have to rely upon a succession of (sometimes contradictory) court decisions to enable us to advise our clients? Surely the time has come for Parliament to properly codify the property rights of cohabitants upon relationship breakdown, in a similar way to the rights of spouses upon marriage breakdown?

As I have mentioned before, Resolution suggests that if a couple have been together for two years or more then they should take some responsibility for each other’s welfare when their relationship ends. Until that time, strict property rules could apply, although it would be helpful if, as Baroness Hale suggested in Stack v Dowden, the Land Registry made it mandatory for the Transfer document to contain a declaration setting out how the transferees are to hold the property. Of course, any major change in cohabitees' property rights should be accompanied by a publicity campaign to make the public aware of the new law.

There has been much discussion about changing the law. Let's hope that, when it's published in August, the Law Commission's final report will create the impetus for change to actually happen.

Podcast!

This afternoon I had the honour and pleasure of recording a podcast for Charon QC, which can be found here. Subjects covered include divorce reform, cohabitees' rights, mediation, child support, children disputes, legal aid and... the cricket World Cup. I hope listeners find it of interest.

Many thanks to Charon for inviting me to do the podcast, which I found thoroughly enjoyable.

A question of intention

The eagerly awaited decision in the case of Stack v Dowden has been published today, with the House of Lords unanimously dismissing Mr Stack's appeal. He had claimed that he was entitled to a half share of the proceeds of sale of the property that he owned jointly with his former cohabitee, Ms Dowden. The County Court found in his favour, but Ms Dowden appealed and the Court of Appeal granted her 65% of the net proceeds. Mr Stack appealed to the House of Lords, which found that Ms Dowden had proved that the common intention was that she and Mr Stack should hold the property in unequal shares, and therefore upheld the order of the Court of Appeal. One factor indicating this common intention was that Ms Dowden had clearly contributed far more to the acquisition of the property than Mr Stack. Another was that, unusually for a couple that had lived together for so long (twenty-seven years) and had had four children together, they kept their affairs "rigidly separate", which Baroness Hale considered to be "strongly indicative that they did not intend their shares, even in the property which was put into both their names, to be equal".

Hopefully, cohabitees will, at some point in the near future, be given properly defined property rights (I have posted about this before - see, e.g., here), in which case the importance of this decision may only be temporary.

Brain dead

I've just received one of those emails that does the rounds, usually containing jokes. This one contained quotes from an American publication 'Disorder in the Court: Legal Laughs, Court Jests and Just Jokes Culled from the Nation's Justice System', and I thought I'd share here one quote I rather liked:

ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure ?
WITNESS : No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: But could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law.

Money to burn

The Guardian reports today that, according to a survey by Grant Thornton, 49% of divorces in Britain last year came after one partner asked a private investigator to check whether the other was committing adultery. Sorry, but I just don't believe it. It is extremely rare for any of my clients to use a private investigator. Apparently Grant Thornton got the information from "100 leading matrimonial lawyers". I suspect that this means 100 lawyers who act for high-worth clients who have money to burn on instructing private investigators. The reality is that even if the number of people suspecting that their spouse is committing adultery is increasing (although this is not borne out by the figures for divorces based upon adultery), most people simply can't afford to instruct a private investigator.

Lamentable and grotesque?

One of the most frustrating aspects of divorce work is when the parties are unable to agree anything, making the proceedings a struggle all the way. Perhaps the most extreme example of this is the Moore case, reported in various places over the last couple of days, and described by Lord Justice Thorpe as a "lamentable and grotesque waste of family resources". After spending £1.5 million in legal costs, "the only decision made so far in the fight between Jim and Kim Moore over their £135m fortune", says BBC News, "is that the case should be heard in London", rather than Spain.

The parties moved to Spain and were divorced by a Spanish court in 2003. Mrs Moore returned to England and wanted the English courts (which currently have a reputation for giving wives the most favourable settlements) to deal with the financial/property settlement, but Mr Moore wanted it to be dealt with by the Spanish court. The High Court found in favour of Mrs Moore, and this decision was confirmed on Friday by the Court of Appeal.

The most remarkable aspect of the case is that the Spanish court would in any event have dealt with the financial/property settlement in accordance with English law. "We do not know", said Lord Justice Thorpe, "whether this lamentable and grotesque waste of family resources is the result of the intransigence of one of the parties or because the husband hopes that the Spanish court ... will misapply English law to his benefit". According to The Times, "he had previously asked [Mr Moore's] barrister, Barry Singleton, QC, why he was so determined to have the case heard in Spain and that Mr Singleton "was unable to give any positive answer"". The Times goes on: "Neither Mr Singleton, his junior barrister on the case, nor Mr Moore’s solicitors, Withers, would tell The Times what they hoped to gain from hearing the case in Spain".

Of course, whether the lawyers involved on both sides considered their costs to be a "lamentable and grotesque waste" is another matter...

Pondering about blawgs

It seems to me that, with a few notable exceptions, most UK blawgs by lawyers are written by barristers, or aspiring barristers, rather than by solicitors, or aspiring solicitors. I have been pondering the possible reasons for this:

1. Barristers have more time on their hands than solicitors.

2. Barristers are more interesting than solicitors.

3. Barristers have bigger egos than solicitors.

4. Barristers have more to say than solicitors.

5. More barristers know how to use a keyboard than solicitors.

6. All of the above.

If you have any thoughts on the subject, please send them on a postcard to: The Interesting Facts About Barristers Department, The Bar Council, 289-293 High Holborn, London WC1V 7HZ.

Easing the transition

I've now read the full report of the case The Times referred to on it's front page last Saturday (see this post). The judgment makes interesting reading, and is certainly somewhat different to the 'spin' put on it by The Times, which suggested that the wife didn't do very well.

The marital assets at the time of the separation were some £27 million. It was agreed that these should be shared equally, but the wife also sought half of the £2.3 million bonus that the husband had 'earned' (if indeed one can 'earn' an extra £2.3 million in a year) since the separation, plus an additional £1.5 million "as compensation for her loss in the future of a share of the husband's income and her interest in his earning capacity". The wife failed in this, and this is what The Times picked up on. However, The Times failed to mention that, in addition to half of the £27 million, the judge awarded her a further £1.4 million, which he described as "an award that eases her transition to independent living". Quite why £13.5 million was not enough to ease that transition, he did not explain.

I'm sure I'll find the judgment most useful when advising my clients how to split the proceeds of sale of their three-bedroomed semis.

Dulce Et Decorum Est Pro Alius Terra Mori

A week or so ago Ruthie at Geeklawyer posted about the average age of British soldiers killed in Iraq, referring to the Paul Hardcastle song Nineteen, which was about the average age of combatants killed in the Vietnam War. Yesterday the parents of an eighteen year old soldier buried their son, who was killed on the 2nd April, further reducing the average. I can't begin to imagine what it's like to lose a son who was barely an adult, but to lose him in such a war must make it doubly difficult to accept.

Last month the grandfather of a twenty-one year old soldier also killed in Basra asked why we are in Iraq, saying: "God save us all from political leaders who are not only blind in world vision, but also blind and deaf to the will of the country, and the people who put them into power in the first place". Powerful stuff.

Law, but not for teachers

I'm not sure how relevant this is to the vast majority of divorcing couples, but when a divorce case makes the front page of The Times, I feel obliged to mention it. This is, of course, yet another big-money case (I wish the courts would give some guidance on how to deal with the 'ordinary' cases most of us deal with most of the time), and suggests that wives of high earners cannot always expect to receive a share of their husband's future earnings for life, contrary to what appeared to be the case in the recent decision in Miller and McFarlane.

What struck me was the following quote from the judgement of Mr Justice Charles:

This is not a case in which the wife gave up a career that was likely to provide substantial income or monetary reward. She was a teacher.

I can't decide whether this says something about judges, the teaching profession, or both.

Not a good idea

Here's a story with a twist in the tail. On the 23rd March William Hammerton succeeded in his appeal against being committed to prison for three months for breaching an undertaking and an order not to molest his former wife. The Court of Appeal was quite scathing about the way the case had been conducted, aiming much of it's criticism at Mr Justice Collins, who had made the committal order.

So far so good for Mr Hammerton. Unfortunately, he was not satisfied. A few days later he returned to the Royal Courts of Justice, sought out His Honour Judge Collins and pelted him with eggs. After one struck the judge, he proceeded to read out from the Court of Appeal judgment. Not surprisingly, Mr Hammerton soon found himself back behind bars, after being given a two month sentence for contempt of court on the 30th March.

Reasons to celebrate

On this weekend when theists around the world are commemorating their beliefs, it's good to see Geeklawyer risking (according to Ruthie) eternal damnation by putting his point of view in his usual understated style: "Jesus was a fictitious Jewish terrorist with a mental disorder that led him to think he was the son of a non-existent God and who therefore died pointlessly for his own sins".

Feeling in a conciliatory mood, I won't say anything so controversial, so whether you believe your prophet's birthday was the other day, the son of your god was executed and came back from the dead this weekend, or, like me, that the holiday is just about celebrating the coming of spring, I'd like to wish all readers a happy and healthy Easter.

[Thanks to Sevenoaks Art for the animated gif.]

Pyrrhic victory?

On a more serious note, the Gazette also reports the disappointing but not surprising news that 94% of legal aid firms have signed the new civil contract. The Legal Services Commission will no doubt see this as a victory, even if they don't say so, but I'm not so sure. Most legal aid firms could not possibly have restructured their businesses to do without legal aid work in the short time available. My view is that many of those firms that signed will now be starting such a restructuring process, with a view to giving up legal aid work as soon as it is viable to do so. Will the LSC still think this is a victory in a couple of years time?

Pest control

Thanks to the Obiter column in this week's Gazette for pointing out this wonderful TV advertisement by a US divorce lawyer (it may take a while to load). As the advertisement points out, Steve Miller of DivorceEZ.com offers a fixed-fee divorce service for $249 (without children). What is so special about the advert though is the language he uses. "If you and your spouse hate each other like poison and want to get out of the hell-hole you call a marriage, you've come to the right place", he says. He then advises against (amongst other things) giving "thousands of dollars to some piece of crap three piece suit downtown", by which I assume he means other divorce lawyers, and instead recommends using his service, when you will be "on your way to getting rid of that vermin you call a spouse". Brilliant stuff.

The web site calls the advert 'a satirical look at divorce lawyers, paralegals and clerks', but the Florida Bar Association didn't see the funny side - according to Obiter they banned the advert "for including language that promises a particular result, which is not allowed in legal services advertising". Something tells me it may have been banned over here as well.

Search me

Up until now I've resisted the temptation to play the 'see what search terms found my blog' game, but I think some of the terms that have recently shown up on my log deserve comment.

How about the lovely sentiment of: 'family thoughts', or the only slightly less vague: 'family law stuff'? Or what about the cryptic: 'are pren', or the worrying: 'toon obscenity'? Then there's the distressing: 'separation and divorce 17 month old anxiety'. And how did 'why doesn't text align with numbered pleading paper' find this blog?

My favourite though is the interesting but almost defamatory: 'did terry wogan deny payment for the children in need programme'. Unfortunately for him/her, the searcher will not have found the answer on this blog. If you know the answer... please don't tell me.

A Dog's Dilemma

At midnight last night the little-publicised Matrimonial Property (Dogs) Rules 2007 came into effect. The Rules provide a procedure to resolve disputes between divorcing couples as to who should keep the family dog. Under the Rules, the parties will stand ten feet apart in an empty room. The dog will then be let into the room, through a door midway between the parties. The party to whom the dog goes will be granted custody of the animal. Further rules provide that the parties must not call the dog, and that they are both searched beforehand for doggie chews, bones or anything else that might entice the dog to go to them.

Let's hope the new Rules bring an end to distressing disputes over the ownership of the family pooch.