Old John's Almanac 2008

Having so successfully predicted the top family law news stories of 2007, here are my predictions for 2008:

January - The former office of Messrs. Brow, Beaten & Bankrupt of Little Sodbury, the last firm to offer a legal aid service, reopens as a McDonald's restaurant.

February - Heather Mills releases an instructional DVD, "How to keep calm during your divorce".

March - The Government announces that it has finalised its plans to reform the Child Support Agency. Apart from a different name (C-MEC), the new agency will be exactly the same as the CSA, but half the size.

April - McDonald's in Little Sodbury announces that it will now offer a free divorce with every burger.

May - Mr Justice Singer is reprimanded after he suggests that a black wife might prefer to receive maintenance in the form of bananas.

June - C-MEC announces that all of its records have been lost, when they are eaten by a clerk's dog.

July - The Legal Services Commission increase legal aid rates by 0.1%, in a last-ditch effort to entice solicitors back into legal aid. There are no takers.

August - The Office for National Statistics announces that the divorce rate has fallen again. The Department for Work and Pensions announces that the number of unemployed solicitors has increased again.

September - Fathers' rights group The Real Families Need Fathers 4 Justice executes its most audacious stunt to date, painting Gordon Brown's face red. However, after the PM's latest loss of records embarrassment (his Cliff Richard collection), no one notices.

October - C-MEC announces that, to reduce its workload, all arrears more than a week old will be remitted.

November - Climate change campaigners protest outside Parliament, calling for the abolition of divorce.

December - In the New Years' Honours, Bruce Hyman receives a knighthood for services to the legal profession.

Happy New Year!

On the map at last

Thanks to Charon QC (or is it Charoron QC?), Family Lore now appears on the Blawg Review Guest Map.

Presently these sceptred isles are somewhat sparsely populated. Come on you UK blawgers - put yourselves on the map!

I Understand

I understand that disgraced barrister Bruce Hyman was seen attending a party just before Christmas, having been sentenced to 12 months in prison on the 19th September last.

I understand that the Judge indicated he was to serve 6 months before getting parole.

I understand that he has not paid the £3,000 compensation that he was ordered to pay.

I understand that he has friends in high places, including the President of the Family Division, Sir Mark Potter, who gave him a character reference.

Rejoice!

Today we celebrate the birthday of one of history's truly great men, a man who changed forever the way we view our universe. So, join with me and celebrate the birthday of...

...Sir Isaac Newton!

[With thanks to Richard Dawkins, the New Statesman, RichardDawkins.net and Head of Legal, in that order!]

Blair converts to Catholicism

Nutter.

***

Blair: Forgive me Father, for I have sinned. I took my country to war on a completely false premise.
Priest: Never mind my son, a couple of Hail Marys will sort that out.

Etc.

Unnecessary

Here's another piece of unnecessary suffering caused by religion. In India, Hinduism frowns on widows remarrying, with the result that "a woman can quickly lose her dignity, even her basic rights, when she loses her husband". Many find themselves destitute, relying on charity or even begging and many "are dumped by their relatives in religious towns". India has an astonishing 33 million widows, some of whom are very young. The Indian government has outlined plans to help them, but it seems to me that the best solution to the problem would be to outlaw this appalling religious discrimination, although I realise that such nonsense can be so deeply ingrained in the minds of those who know no better (encouraged by religious leaders with a vested interest in perpetuating it) that this is easier said than done.

Top 5 family law cases of 2007

Family Law NewsWatch have listed what they consider to be the five most important family law cases of 2007, as follows:

1. Charman v Charman
This one needs no introduction. The size of Mrs Charman's award was what caught the headlines, but it must be remembered that she only received 36.6% of the assets, primarily due to Mr Charman's "special contribution".

2. Stack v Dowden
Another one that should by now be well known to all family lawyers, although only a couple of weeks ago a client of mine was forced to go to a final hearing due to her opponent's adviser's lack of understanding of what Stack v Dowden decided. The case collapsed and my client's opponent was forced to concede, in humiliating fashion.

3. Hill v Haines
Or Haines v Hill & Another. A recent Court of Appeal decision that came as a great relief to all family lawyers. See this post.

4. North v North
Another sensible decision by the Court of Appeal. See this post.

5. Ella v Ella
I'm not sure that this one would make my top five. Mrs Ella failed in her appeal against an order that stayed ancillary relief proceedings in England, to allow them to continue in Israel as required by a pre-nuptial agreement, despite the parties having been largely resident in the UK during their marriage. Lord Justice Thorpe rejected the appeal, partly on the grounds that the pre-nuptial agreement was "undoubtedly a contract which in the Israeli jurisdiction is of considerable effect", irrespective of its relevance to an ancillary relief award in this jurisdiction.

Happy Winter Solstice

Happy winter solstice to all readers of Family Lore. I nearly didn't write this post for fear of being considered politically correct. Heaven forbid. Winter solstice was, of course, celebrated in Britain long before it was hijacked by Christianity, and relates to a real phenomenon rather than a myth - that is why I recommend it be celebrated, not so that other religions are not offended. So, light your bonfires, break out the sweet ale and start the feasting! Or, in my case, light a cigarette and open a bottle of lager...

I really must get a life...

62%How Addicted to Blogging Are You?

The Ancillary Actuary

Peter Moore, Managing Director of actuaries Bradshaw, Dixon & Moore has just informed me of his firm's new blog, The Ancillary Actuary. The blog "is intended to encourage an exchange of ideas and promote debate about the financial issues that arise in a relationship breakdown". It is still in its infancy, but already contains a useful series of posts on the complex (at least to us family lawyers!) subject of pension valuation.

Crossley: support for pre-nups

If ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, it seems to me that this is just such a case.

So said Lord Justice Thorpe in the Court of Appeal yesterday, in the case of Crossley v Crossley. The case concerned the appeal by Mrs Crossley against a decision to short-circuit normal court procedures, which Mr Crossley had argued was appropriate because the marriage was short and childless, both parties had independent wealth and a prenuptial agreement had been signed. In upholding that decision, the Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.

Lord Justice Thorpe apparently also called for legislation to clarify the status of prenuptial agreements, although it bothers me that this decision may have already elevated their status beyond what current legislation provides. Is it not for Parliament rather than the courts to decide such fundamental issues? Of course, the situation is not helped when Parliament seems quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system, leaving the courts to keep up with the ever-changing Zeitgeist.

[For update, see this post.]

Single, seeks divorce

Here's a conundrum: Can a man who claims not to have married a woman seek a divorce from her? This is the problem facing the principal judge of the Gaya family court in India, in the matter of Rajesh Majhi versus Pramila. Majhi has presented a petition for divorce in which he claims that he hasn't married Pramila as per Hindu rituals. Now, I'm no expert on Hindu marriages, although I do remember many years ago acting for an Indian client in which the question arose as to whether his 'marriage' in a remote Indian village would be recognised under English law. The conclusion, I recall, was that it would not, with the result that there could be no divorce proceedings in this country. Accordingly, if Mr Majhi's 'marriage' is not recognised under Indian law, then surely the court cannot grant him a divorce. Of course, it is very odd that Majhi seeks a divorce and claims he is not married in the same petition. Surely, the logical thing to have done was to first seek a declaration from the court as to the validity of the marriage, and only then issue divorce proceedings if the court found that the marriage was valid?

Peddling Lies

I was horrified to read this article in last Sunday's Observer, which I found via RichardDawkins.net. I was already aware of the appalling 'Creation Museum' in Kentucky, USA, where you can see such nonsense as scenes depicting prehistoric children playing alongside dinosaurs, but I hoped we would never see the like in England. Well, it seems that the AH Trust have other ideas. They want to build a 'Christian Theme Park' and television studio in Lancashire that "will champion the book of Genesis and make a multi-media case that God created the world in seven days".

Look, if you don't believe in the theory of evolution that's fine, but to teach children to believe myths such as that the world was created 6000 years ago in seven (or even six) days is just plain wrong. To teach them to believe in any theory for which there is no evidence, such as creationism, is also wrong. Fine, tell them about these stories, even tell them that some people believe they are true, but don't tell them that they are true. Don't also tell them, as the AH Trust does on their website, that evolution is a 'falsehood', when it supported by such an enormous body of evidence. On the other hand, please do teach them to be critical when considering any theory - and that certainly includes the theory of evolution.

OK, rant over. To end this post on a lighter note, I was amused when I read that the AH Trust "believe that this unique project will influence an end to binge drinking" in our young people. Yes, I can really see our youth giving up drink to stay at home and watch a bit of Christian TV!

[For a superb report upon the Creation Museum, and the delights that may soon be available to Lancastrians, see here.]

The annual missive

Dear Friend,

Season's greetings! I thought you would like to know what has happened to me and my wonderful family over the past year, so I am enclosing this letter with all of my Christmas cards. It has been a difficult twelve months, but I like to think that we have come through it all as stronger people.

My lovely wife Ingrid and I parted in January, after she found out about my little indiscretion with my secretary at last year's Xmas party. She took it very well in the circumstances, although I had to buy myself a new set of clothes after I came home one day to find that she had taken a pair of scissors to my entire wardrobe. Naturally, I responded to the divorce proceedings by declaring myself bankrupt, to prevent her from getting my half of the house - a ploy that would have worked had it not been for a recent decision of the Court of Appeal.

Ingrid still lets me see the children occasionally. The twins Ronnie and Reggie got into a bit of bother with the police, but they now proudly boast of their Asbos to their friends. As for little Chantelle, she managed to get herself pregnant but she says that she will get the baby adopted without telling the father, and no one will be any the wiser.

Here's hoping next year will bring better news!

Best wishes to all,

Chris Mastedium and the family.

A seasonal joke

Well, I just had to keep this chain joke going, particularly as its subject is relevant to this blog (and I too enjoyed the black humour):

A man in Chicago calls his son in New York the day before Christmas and says, ‘I hate to ruin Christmas this year, but I have to tell you that your mother and I are divorcing; forty-five years of misery is enough.’

‘Pop, what are you talking about?’ the son screams. ‘We can’t stand the sight of each other any longer,’ the father says. ‘We’re sick of each other, and I’m sick of talking about this, so you call your sister in Atlanta and tell her.’

Frantic, the son calls his sister, who explodes on the phone. ‘Like hell they’re getting divorced,’ she shouts, ‘I’ll take care of this.’ She calls Chicago immediately, and screams at her father, ‘You are NOT getting divorced. Don’t do a single thing until I get there. I’m calling my brother back and we’ll both be there tomorrow. Until then, don’t do a thing, DO YOU HEAR ME?’ and hangs up.

The old man hangs up his phone and turns to his wife. ‘Okay,’ he says, ‘they’re coming for Christmas and paying their own way.’

Credit to that eminent oenophile, Charon QC.

Festive advice

There's been plenty of recent advice for separated parents upon how to ensure the festive season is as stress-free as possible for their children. For the benefit of readers of Family Lore, here are the links:

• Judith Middleton, who set out advice from Resolution.
• Advice from Christina McGhee, an experienced parenting support professional in the USA.
• Diane Benussi's advice.

Wise public policy?

A recent case in America could illustrate what the future holds for low-income litigants in this country, if the exodus of legal aid lawyers continues. Mother of three Brenda King could not afford representation in a custody dispute. She couldn't find pro bono help and therefore had to represent herself. Unsurprisingly, she lost the case, and to rub salt into the wound she was ordered to pay $7,500 costs. She subsequently appealed to the state Supreme Court for a new trial, this time with a divorce lawyer at public expense. Her appeal was refused.

There are already legal aid 'deserts' in this country. They are growing bigger, and the Government is deaf to calls for more money to stop the exodus. How long before Mrs King's experience becomes typical over here? Interestingly, one of the Justices that ruled against her suggested that the Legislature may want to extend the constitutional right to an attorney to divorce cases when a party can't afford to hire a lawyer, as a matter of "wise public policy".

Why courts favour mothers

A recent visitor to Family Lore found their way here by googling the term "why do courts favour mothers when it comes to making residency orders?" Statistically, this is true, but there is no bias written into the law, as I have stated on more than one occasion previously. So why is it? Well, for the sake of an objective analysis I will assume that the courts are not simply biased (an assumption that I know some will find hard to accept), so here are my thoughts:

1. For obvious reasons, courts are likely to favour mothers where the child is very young, and when the child is a girl entering puberty. This can also mean that the mother will be granted residence of the other children, as courts do not generally like to separate siblings.

2. There are often practical reasons favouring mothers, the most common of which is work. The father is more likely to be working longer hours, and therefore in a worse position to look after the children.

3. (A controversial one.) Mothers may more often possess better parenting skills than fathers - certainly this is a common perception, which may or may not be true.

4. The ascertainable wishes of the child are, of course, an important factor, especially where the child is older. Do children favour mothers? I'm not aware of any statistics for this - perhaps a CAFCASS officer could provide an answer.

5. The risk of harm to the child is another factor, and I would suggest that this is more likely to go against the father than the mother, as there is probably a greater fear of harm by fathers than mothers.

6. Lastly, economic reasons mean fathers are more likely to leave the family home than mothers and therefore their having residence would involve a change of circumstances, giving fathers an extra hurdle to overcome if they are to get residence.

As usual, I am open to other suggestions.

Pay peanuts...

At its annual conference last month the Association of Lawyers for Children conducted a survey of delegates designed to ascertain the impact of the Government's current legal aid reforms on those members of the Association attending the Conference. The results make damning reading. Of the 101 responses, a third said that they were reducing publicly funded work, and 40% of firms had reduced or intended to reduce reliance on publicly funded work. Of the 17 people who had left or were leaving practice, 62% cited legal aid changes as their reason for leaving.

I found this story via Family Law NewsWatch. What I liked about their article was the accompanying picture, which I reproduce here (I hope they don't mind). Most apt.

A deep and abiding love

Here's a great idea for all those gadget geeks who value their Mp3 player/PDA/[insert gadget here] over and above all else. Up until now these poor souls have had to live a lonely existence, shunning marriage for fear of losing their most precious possessions should the relationship break down. Well, help is at hand. Sellers of all things 'gadgety' PIXmania.com have come up with the 'Gadget Prenuptial Contract', which will ensure that, whatever happens, the 'Gadget Lover' will keep their gadget.

[Geeklawyer: The fact that I was looking at your blog as I wrote this is purely coincidental. Honest.]

My cat and I

I was talking with my cat last night. "Muhammad," I said, "what do you think of this 'missing canoeist' case?"

"Ah," he purred, "a very sad case. I'm sure the truth will soon come out, but I fear that he and his wife may be the most inept fraudsters since Bruce Hyman. To pose for a picture in the knowledge that it will appear on the internet requires breathtaking stupidity, just like sending a fraudulent email in view of a security camera."

"Yes, I suppose so," I said, "but why did he walk into a police station?"

"That's interesting," he said, and stopped to lick his paw. "I think he just got tired with the whole deception. He was fed up with pretending he was someone else."

"What, like Gordon Brown pretending he's the Prime Minister?"

Clearly amused, Muhammad began purring more loudly. "Sort of," he said, "but I don't think Gordon Brown has the sense to give himself up to the police."

"No, I think you're right." I replied.

Muhammad then became more thoughtful. "The people I feel sorry for are the children." He said. "It's so sad when parents put their own interests before their children."

"Yes," I said, "I often come across that in my work. Did you see that case in the Czech Republic where the court, fearing the mother was poisoning her daughter’s mind against the father, sent the child to a mental institution so that psychologists could work with her without the influence of the mother?"

"I did." Said Muhammad. "Madness - it's the parents who need help, not the child."

"Indeed," I said, "so what do you think will become of Mr and Mrs Darwin?"

"I don't know," said Muhammad, "I'm not a prophet."

Divine Witnesses

I love this story, reported by the BBC today. It concerns a dispute over the ownership of a plot of land in the Indian state of Jharkhand, upon which stand two temples. Temple priest Manmohan Pathak claims that the land belongs to him, but locals say that it belongs to the two Hindu gods, Ram and Hanuman. Naturally, the judge has summoned the two gods to appear before the court next Tuesday to help resolve the dispute, the gods having inexplicably failed to respond to notices sent to them previously.

I can't wait to see if they show up.

How to save the planet

Further to this post, it seems that a divorce could be made 'greener'. For details (I suggest somewhat tongue in cheek) see here.

Mrs Haines wins appeal

Well, Mrs Haines has won her appeal. The Court of Appeal today overturned the earlier ruling in favour of the trustees in bankruptcy and ordered that she could keep the proceeds of the sale of the former matrimonial home. Interestingly, Lord Justice Rix said that it would be “unfortunate in the extreme” if a settlement approved in a divorce court could be undone for up to five years because the husband goes bankrupt - "that could even encourage such bankruptcy on the part of a disaffected husband”. Indeed it could.

The trustees are apparently intending to appeal to the House of Lords.

Update: The Court of Appeal judgment has now been published here, on Bailii (citation: Haines v Hill & Anor [2007] EWCA Civ 1284). In it, the Chancellor specifically agreed with the original order of District Judge Cooke, in that firstly, the husband did receive consideration, to the extent that the wife's claim had been extinguished or satisfied; and secondly that consideration could be valued in money or money's worth, and its value was not less than the value of the consideration provided by the husband. Accordingly, s.339(a) and (c) of the Insolvency Act 1986 were inapplicable, and the transaction could not therefore be set aside. Lord Justice Rix summarised (at paragraph 82):

Although a collusive agreement by a divorcing husband and wife to prefer the wife and children over creditors and thus dishonestly to transfer to her more than his estate can truly bear, if his debts were properly taken into account, and thus more than her ancillary relief claim could really and knowingly be worth, is no doubt susceptible to section 339 relief despite the existence of a court order in her favour ... : nevertheless, in the ordinary case, where there is no dishonest collusion, and where a court approves or determines the sum or property to be transferred, it would be entirely foreign to the concept of a "clean break" if the husband's creditors could thereafter seek to recover, in bankruptcy, the property transferred or its value.

I can hear the collective sigh of relief from divorce lawyers up and down the country. Now we must hope that the House of Lords doesn't reverse the decision...

An exquisite irony

Readers may already be aware of the Mubarik/Mubarak case, in which the two children of a multimillionaire jeweller have been given legal aid of £30,750 to protect their interests under a family trust, as their mother is attempting to enforce a divorce award against their father, whose wealth is tied up in the trust. I have just read this report about the case in the Guardian yesterday.

That two children who were born with diamond encrusted spoons in their mouths should be granted legal aid is absurd enough (and a kick in the teeth for those thousands of deserving individuals who are refused legal aid every year), but to add insult to the taxpayer's injury the parents have managed to avoid paying any tax at all, despite being resident here for tax purposes and liable to English taxation, a situation which Mr Justice Holman describes as "exquisitely ironical". No doubt the media will have a field day with this one, and quite right too. If this sort of nonsensical anomaly is not eradicated from the legal aid system, then that system deserves all the ridicule it gets.

C-MEC: An 'imminent debacle'

Thanks once more to Family Law Week, this time for pointing out this recent press release from Resolution. In it, Kim Fellowes, Chair of Resolution's Child Support Committee states that the Government’s plans to reform the Child Support Agency are an 'accident waiting to happen'. She says that "despite consulting widely on its proposals, the Government is refusing to take on board the concerns raised by many different agencies. As a result, the Government’s plans look set to continue the pattern of failure that has dogged the CSA. Worse, they look set to create a new system that will be even more unfair and ineffective than the present one". She then goes on to particularise failings with the proposed new system.

I couldn't agree more. There is nothing whatsoever in the proposals as they stand that gives me any reason for optimism - quite the contrary. Unless the Government listens, C-MEC will be no more than another re-branding exercise, in the forlorn hope that the new agency will not be tarred with the same brush as the CSA.

Divorce causes global warming shock

Well, here's a new angle on divorce: it causes global warming. OK, that's not specifically stated in this story today in the Sunday Times, but that's the implication. The story reports the pretty obvious results of research that quantifies the effect on the environment of the extra households caused by couples splitting up.

The story begins by somewhat facetiously suggesting that couples may stay together for the sake of the environment rather than for the sake of the children, but I hope that environmental groups and 'family values' conservatives don't jump on the findings to blame couples for 'not trying hard enough'. There is already a school of thought that couples separate too easily, at the first sign of trouble, but the fact of the matter is that for many today marriage is no longer forever, and any attempt to coerce them to stay together is bound to cause hardship (I can't think that there is any such thing as a 'green divorce').

On the subject of global warming, I have to say that I am something of a sceptic, although perhaps I wouldn't be if politicians hadn't jumped so eagerly on the bandwagon. What irritates me in particular is the nonsense implication in many quarters that climate change is something new. The earth's temperature has always been subject to change, and always will be - we've got to learn to live with it. Having said that, I've no doubt that the human race is damaging the environment, but I'm not sure that it would be appropriate to blame separating couples.