Friday, November 30, 2007
First up was Richard Buswell, who discussed Hill v Haines, a case I have mentioned here before. Richard began by stating that he does not believe the case has changed the law. Instead, its importance is that it significantly increases awareness of the impact of bankruptcy on ancillary relief applications. To recap, the case decided that divorce financial orders made in contested proceedings can be set aside, so that the trustee can utilise assets that the court ordered to be transferred from the bankrupt spouse to the other spouse, to pay the bankrupt's debts. Richard envisages trustees in bankruptcy mentioning Hill v Haines to family lawyers and expecting them to instantly capitulate, so listed a set of 'tools' that we can use to 'fight back'. He pointed out that the case does not say that orders can be set aside where consideration in money or money's worth has passed between the parties. Accordingly, we should look for examples, such as money already received/spent, or assets 'ring-fenced' and kept by the transferring spouse, such as a business. It could then be recited to the order that, for example, 'the wife has relinquished her claim to the husband's business, worth £x'. Very useful. [Note that Hill v Haines recently went before the Court of Appeal, and we are awaiting the judgement.]
Richard was accompanied by Simon Buckhaven, who gave a fascinating talk about the Charman case, detailing the facts and summarising the pertinent points. Simon considers that Charman has considerably clarified the principles to be applied when deciding an ancillary relief case, following a string of muddled and contradictory decisions. In particular, he says, equality of division is no longer just a 'yardstick' or check, it is a principle of financial law, so that property should be shared equally unless there is good reason to depart from equality. Importantly, Charman applies not only to big money cases but to all cases so, for example, it made clear that where need is greater than what can be achieved by equal sharing, need prevails; where need is met by sharing, sharing prevails. Charman then went on to clarify such issues as special contributions, short marriages and other reasons for departure from equality. As Simon says: "It is a welcome decision", and clearly essential reading for all family lawyers (assuming you've not read it already!).
Thursday, November 29, 2007
I've mentioned this elsewhere, but I am reminded of a quote by Arthur C Clarke. When asked what is the greatest threat humanity faces he answered: "Organised religion polluting our minds as it pretends to deliver morality and spiritual salvation. It's spreading the most malevolent mind virus of all. I hope our race can one day outgrow this primitive notion". Amen to that.
Tuesday, November 27, 2007
I don't propose to go through the law on this point, but yesterday I read the case of Berkeley v Bulliqi  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 marriageGreat, 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 effortIn 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?
Monday, November 26, 2007
I am glad, for example, that I do not live in a country like Sudan, where the BBC reports today that a British school teacher has been arrested, absurdly accused of insulting Islam's Prophet, after she allowed her pupils to name a teddy bear 'Muhammad'.
Saturday, November 24, 2007
Thursday, November 22, 2007
I would say that these findings are in line with my own experience. There have been occasions when I have attended hearings in cases where the parties were so far apart that it seemed impossible that any agreement could be reached, only to find that the CAFCASS officer had brought them together. Of course, success rates can vary, depending upon a number of factors, not least the skills of the CAFCASS officers involved and the time they have available to each case. Typically each conciliation meeting is allowed about thirty minutes - to expect all matters to be resolved long-term in such a short time is obviously a little unrealistic, although an agreement reached in conciliation can be the catalyst for better relations between the parents.
I know it won't go down well with fathers' rights groups, but I agree with this conclusion to the report:
The family justice system has been subject to sustained criticism over the last few years. The findings in this study suggest that some recent criticisms, particularly from fathers groups, are misplaced. The courts do appear to be relatively effective at ensuring that contact occurs. Two years after the initial conciliation appointment significantly more children were having contact, and more contact, than they had been prior to coming to court.
[Hat-tip to Current Awareness for pointing out this story and, in turn, to Charon QC for pointing out Current Awareness!]
Wednesday, November 21, 2007
...what can rightly be said about the reforms to family legal aid proposed by the Government and the wider chronic under-resourcing of the family justice system, what can rightly be said to be common ground amongst many eminent individuals and organisations whose opinions deservedly command respect, is that those reforms constitute an unprecedented threat to access to justice for vulnerable children and families in this jurisdiction.On the legal aid reforms he said:
We have sought to make clear to the Ministry of Justice that the new Public Law Outline and the revised Children Act Guidance are designed to be implemented and operated by specialist legal practitioners; that those twin reforms can only be effective in reducing delay and improving outcomes for children if a sufficient and sustainable supplier base of such specialist legal practitioners is maintained. We have repeatedly highlighted that the Constitutional Affairs Committee has recognised, having heard evidence from all interested stakeholders from the senior judiciary to children's charities, that the proposed reforms to legal aid constitute a "breathtaking risk."So, is Section 1 of the Children Act (which also of course states that "the child’s welfare shall be the court’s paramount consideration") effectively no more than hot air, just another example of government spin? Is it really the case that the Government is more interested in hard economics than the welfare of children? The Government will, of course, continue to demand more efficiency, but MacDonald responds that "there is a level of chronic under-investment below which even the most efficient use of existing assets cannot mitigate the impact of that chronic under-investment". When that level is reached, the system will break down - a consequence MacDonald fears will surely happen if the Government continues on its present path.
Monday, November 19, 2007
Now here's an interesting thing. The picture above is a screenshot (click for a full-sized image) of a blog I found today. Something is familiar about it - the post. Yes, it's exactly the same post I wrote earlier today (see below). But wait - what's this? - it says the post was written by 'TheGirl'. Funny, I don't remember giving my permission for someone to copy my post.
The blog is called 'Love Stinks' (www.lovestinks.info) and seems to comprise solely posts plagiarised verbatim from other blogs. There are a number of my posts, and also posts from DivorceSolicitor, all attributed to 'TheGirl'. Now, it's one thing copying other people's work, but but to copy it and take credit for it is in my view completely unacceptable.
If you're reading this post on 'Love Stinks', then perhaps you could leave a comment requesting the blog 'author' not to post other people's work without permission (save perhaps short extracts, with a suitable acknowledgement and link to the original), and certainly not to take credit for it.
[Edit: Well, the above post seems to have had the desired effect. 'Love Stinks' now appears to consist of posts comprising quotations and poetry. All very strange.]
Sunday, November 18, 2007
First up, we have a story from America. In Mineola, New York, a pastor's wife argued that her husband's church should be considered a marital asset in divorce proceedings, as he had used it as his "personal piggy bank". The court was sufficiently convinced to order him to open the church's books to a court-appointed forensic accountant. This is thought to be the first time anyone in New York state has tried to treat a religious institution as a marital asset - and I say why not?
Meanwhile, from Egypt we have this story about women divorcing their husbands for strange reasons, following the introduction of khol'a divorces in 2000 (before that apparently a woman had to present strong evidence against her husband, such as physical abuse or adultery, in order to divorce). The reasons for the divorces are pretty colourful, such as that one husband had bad breath and smelly feet, but my favourite is the one in which the wife sought a divorce because her husband worked as a sorcerer. All of this may sound very good news for Egyptian wives in unhappy marriages, but the downside is that they can only obtain a khol'a divorce if they renounce their financial rights. I'm sure many husbands in this country would be quite happy for their wives to divorce them for having smelly feet, if it meant no financial claim against them.
Lastly, the Guardian yesterday reported that there has been a huge increase in the Spanish divorce rate since the government introduced legislation in 2005 that made the process easier and faster. Unsurprisingly, this has alarmed religious organisations and conservative family groups, but it seems that much of the increase is due to couples who previously separated now getting divorced. Interestingly, the report says that a leading Spanish family lawyer sees the new law "as reflecting social changes in Spain, which has undergone a transition from a deeply Catholic, conservative country under the dictatorship of General Franco to having some of the most liberal social laws". Whatever, if our falling divorce rate means less work over here, I'm sure plenty of English divorce lawyers will happily swap for the sunnier climes of Spain.
Friday, November 16, 2007
Thursday, November 15, 2007
Tuesday, November 13, 2007
Myth #1. Family lawyers are only interested in their fees, rather than achieving a good result for their clients. Aside from the issue of professional pride, family lawyers are in business and much of their work comes from recommendations, so they have a vested interest in client satisfaction.
Myth #2. Family lawyers will follow their client's instructions no matter what. Good family lawyers will only follow their client's instructions up to a point. If it is obvious that to follow instructions would be against the client's interests, then the lawyer will refuse to act - see this recent post.
Myth #3. In children proceedings, family lawyers are biased towards mothers. Why should they be - they act for fathers as well?
Myth #4. In financial settlements, family lawyers aim to take the other party 'for every penny'. Most family lawyers are fully aware that this approach is unlikely to best serve their client's interests, and many subscribe to Resolution's Code of Practice, which requires them to conduct the matter in a constructive and non-confrontational way.
Myth #5. Family lawyers live off the misery of others. We provide a service at a time of great stress, and if it is a good service then that stress will be eased. Having said that, in a large number of our cases the parties are quite amicable - where they are not, the Resolution approach aims to reduce the misery.
Myth #6. Family lawyers are in cahoots with one another. This one is often raised when the lawyer for one party 'fraternises' with the lawyer for the other party at court. But why not? They often know each other, and just because their clients are 'daggers drawn', it does not mean that they must be too. And just because they are friendly, it does not mean that they are doing a deal behind their client's back either.
Myth #7. Family lawyers are resistant to any change in the law that will adversely affect their interests (i.e. do them out of work). On the contrary, family lawyers have supported changes that will do just that, such as encouraging mediation and supporting no-fault divorce.
Myth #8. Family lawyers encourage animosity, to draw-out matters and thereby increase their fees. See 4 above.
Myth #9. Family lawyers charge extortionate fees. Yes, some do, but for most their fees are based upon their experience and their expenses (see this post). Like any business, we have to be competitive, and if we overcharge, our clients will go elsewhere. We do not operate 'charging cartels' - in fact, lawyers rarely discuss their fees with one another. Further, if a client is unhappy with his/her lawyer's fees, they can always request the court to assess them.
Myth #10. Lastly, all family lawyers are rich. If only it were the case. True, some at the top of the profession earn very large sums of money, but isn't that true for most professions? On the other hand, the high-street family lawyer doing predominantly legal aid work will be struggling to make a living at all.
[I'm tempted to disable comments for this post, but I will not!]
Monday, November 12, 2007
Divorce PREP provides "secret divorce planning for men", the idea being that: "By arranging certain things early and understanding the reality of the divorce process, men may avoid a brutal divorce settlement that can financially cripple them for their entire life". For $179 Divorce PREP provides five CDs of advice upon preparing for a divorce, including how to hide the fact that you are preparing from your spouse. The advice is not just meant for those getting divorced either: "Even if you don’t get divorced or don’t want the divorce, you are better off knowing what to do if you are forced into it".
One of the things I liked most about Divorce PREP's web site is the image it uses in its logo, which shows a wife doing the washing up and the husband, tea-towel in hand, scratching his head as he looks at the drying up - the suggestion being that whilst it's OK for a wife to do the washing up, it certainly isn't OK for a husband to do the drying up. The image is named "dead zone guy".
I am often asked by clients, usually husbands, what they can do to protect themselves financially in the event of their spouse commencing divorce proceedings. The answer in most cases is "not a lot". You cannot, for example, transfer assets to a third party in order to defeat your spouse's claim against them, as the court has power to overturn the transfer (and the judge will also most likely take an extremely dim view of your actions). There are some practical steps that can be taken, but they are unlikely to have any great bearing upon the financial/property settlement, which in any event in most cases will be based upon equality, or the genuine needs of the parties and their children.
Last, but definitely not least, Divorce PREP offers an additional product: CheckMate, the "5 Minute Infidelity Test Kit", which you can use to find out if your wife is cheating, by testing her undergarments for semen stains. Nice. Something tells me that if it's reached this point, then the marriage is over, even if the tests are clear.
Saturday, November 10, 2007
Perhaps the most common scenario in family law work is where the solicitor is trying to conduct the matter in a constructive, non-confrontational way (in accordance with Resolution's Code of Practice), but the client wants a far more aggressive approach, despite being informed at the outset of the approach the solicitor will take. This can lead to increasing tensions and, ultimately, a loss of confidence by the client. The client may of course choose to instruct other solicitors, but if they do not, the solicitor may have to cease acting.
As Rule 2.01 states, the solicitor must give reasonable notice of his/her decision, although the guidance notes to the Rule accept that there "may be circumstances where it is reasonable to give no notice". The amount of notice depends upon the circumstances, for example: "it would normally be unreasonable to stop acting for a client immediately before a court hearing where it is impossible for the client to find alternative representation" - where it is, the solicitor "should attend and explain the circumstances to the court".
Friday, November 09, 2007
Thursday, November 08, 2007
I don't know the full facts of the case, but whilst the existence of the child may be an embarrassment for the father, who is said to be now back with his fiancée, it seems pretty clear to me that he has a right to know. More importantly, the child should have the chance to be brought up by one of her natural parents. I await with interest the Court of Appeal's decision.
Thanks to Family Law NewsWatch for their report of this case.
Wednesday, November 07, 2007
- Darren Mack, who murdered his wife and then shot the judge who was handling his divorce, in Reno, Nevada.
Tuesday, November 06, 2007
We the undersigned petition the Prime Minister to remove the child support liability in the new 'child maintenance and other payments bill' for 'non-resident parents' where equal shared care arrangements exist.
I initially hesitated to sign the petition as I did not think that it was necessarily fair that the 'wealthier' parent should have no child support liability just because there is an equal shared care arrangement. The details in the petition do suggest that parents be forced to enter into a private arrangement, but this would require them to agree a child support figure, which obviously they may be unable to do. Perhaps there should be a formula that takes into account the incomes of both parents and the time the children spend with each parent? However, I realise that it would be too much to ask the government to include such a reform in the Child Maintenance and Other Payments Bill 2006-07, so for now I think we should settle with the terms of the petition, which I recommend readers to sign.
Monday, November 05, 2007
Thanks once again to Family Law Week for this case report.
Sunday, November 04, 2007
At the end of a week in which the Daily Mail made the alarmist but ludicrous claim that ALL new jobs created in the economy had gone to foreigners, Victorian Maiden points out: "It seems to be taken as read that immigrants are a bad thing, especially the non-pinky-orange ones. Yet any proof of that proposition is strangely lacking". She concludes: "scummy politicians who seek personal advancement by promoting peoples’ fears, instead of showing those same people that their attitude is wrong, often selfish and often more mean-minded than they really are should be shunned by all". What, politicians refusing to jump on a populist bandwagon? That'll be the day.
Copious Rioja and cigarettes don't dull Charon QC's cutting edge (perhaps they sharpen it?) when he imagines a conversation between the Duke of Edinburgh and King Abdullah of Saudi Arabia which explains a number of things, including the workings of our 'moral foreign policy', which steadfastly and consistently refuses to deal with leaders of countries which have a bad record on human rights. (Victorian Maiden also did an excellent piece about the visit of King Abdullah earlier in the week.) Had we had to suffer an election recently Charon may have stood - see the comments to this post - he would have got my vote.
Finally, The Magistrate's Blog counterpoints the resources that Her Majesty's Courts Service is prepared to plough into obtaining a Charter Mark with the fact that many courts now have to manage without an usher. He calls the Charter Mark a "tired gimmick" whose "principal function is to enhance the career progression of the managers involved and to add gloss to their CVs", whereas ushers "know more about real customer ... service than all the managers put together". Quite.
Saturday, November 03, 2007
Thursday, November 01, 2007
Now, I know there are a number of flaws to the above argument, but I think the basic point is still valid. The level of skill, knowledge and general competence required by a 'big-money case' lawyer is surely not twelve times that of a legal aid divorce lawyer, or anything like it. I am not for one moment saying that they should be paid at legal aid rates, or indeed that legal aid lawyers should be paid £800 per hour, but I think that high profile cases like the McCartney/Mills divorce add to the public perception of all divorce lawyers being 'fat cats', when the reality for most is quite different. The answer, of course, is that legal aid lawyers are worth considerably more than £66 per hour. As for Ms Mills' lawyers, I will leave it to the reader to decide whether they are worth their fees.
[Non-lawyer readers may have done the maths and be shocked to have calculated that, on the basis of the above figures, legal aid lawyers earn £79,000 per annum (assuming they do no private work). However, this does not take account of the lawyer's substantial overheads such as insurance, rent, equipment, wages for non fee earning staff etc. The amount that a legal aid lawyer actually receives will be a fraction of his/her fee income.]