Wednesday, December 31, 2008

Old John's Almanac 2009

Having once again successfully predicted the top family law news stories of the last year, here are my predictions for 2009:

January - The anticipated surge in divorces caused by the recession does not occur; divorce lawyers retrain en masse in insolvency work.

February - Madonna reveals that, contrary to previous reports that suggested she only paid £50 million, she actually paid Guy Ritchie £100 million from her estimated £300 million fortune.

March - Having spent her entire settlement on partying, Heather Mills obtains legal aid to launch an unexpected appeal. Fiona Shackleton invests in a bathing cap.

April - Desperate to drum up business, I do a centrefold in Playgirl. It is not a success...

May - Madonna reveals that, contrary to previous reports that suggested she only paid £100 million, she actually paid Guy Ritchie £150 million from her estimated £300 million fortune.

June - YouTube divorcée Tricia Walsh-Smith releases a new self-help video for women going through divorce: "How to Gain Sympathy and Influence the Court".

July
- Madonna reveals that, contrary to previous reports that suggested she only paid £150 million, she actually paid Guy Ritchie £200 million from her estimated £300 million fortune.

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 tries to bring the M25 to a standstill by demonstrating on a gantry over the road. Unfortunately, the M25 is already at a standstill, so no one notices.

October - Madonna reveals that, contrary to previous reports that suggested she only paid £200 million, she actually paid Guy Ritchie her entire £300 million fortune.

November - In Re: A Family Lawyer (Shoe Condition) Mr Justice Munby issues a warning to family lawyers about their failure to polish their shoes before attending court.

December - The BBC launches its new legal-reality series, The Solicitors. Viewing figures plummet.

Happy New Year!

Tuesday, December 30, 2008

Not-So-Lean Times

Thanks to James Gross of the Maryland Divorce Legal Crier for the heads-up on this article that appeared in TIME magazine a while back. For the most part, it is a reasonably serious examination of the effect of recession on marriages, but what clearly amused Gross was this note of optimism: "There is some good news. A study that correlated Playboy centerfolds with market conditions found that men like fuller-figured women more in lean times than in boom times. The APA study showed that when stressed, women liked to eat. Bingo!" Hmm, as a divorce lawyer I'm not sure I'd call this good news...

Monday, December 29, 2008

DO YOUR OWN DIVORCE! - Updated!

I have now fully updated DO YOUR OWN DIVORCE!, my guide to divorcing without a lawyer. Updates include changes to child support and the recent changes relating to children applications and contact enforcement.

Further, I have now
reduced the price of the book to just £9.99.

The book may be purchased from the same page as before.

Saturday, December 27, 2008

School Days

Just came across this on YouTube. Brings back good memories. Enjoy.

Family Law Focus updated again

Things may be a little quiet, but I am now updating the news again on Family Lore Focus, following Xmas. I have also added another article, An Introduction to Cohabitee Property Disputes, Part I, which can be found in PDF format here and as a podcast, here.

Friday, December 26, 2008

Top Ten Cases of 2008

Family Law Newswatch has selected its 'Top ten family law cases of 2008', comprising what it considers to be the "ten most significant family law cases reported this year".

Pre-nuptial agreements figure prominently, with Crossley v Crossley, NG v KR and the recent MacLeod v MacLeod all featuring. Whilst these cases are all very interesting, I'm not sure just how significant they are for the vast majority of those using the family justice system. Pre-nuptial agreements remain the preserve of the extremely wealthy, with very few people of 'ordinary means' entering into them. Further, attempts to have the judiciary make them enforceable are, surely, doomed to failure. As Baroness Hale made it very clear in MacLeod, this is a job for the legislature, not the judiciary.

At number three in the top ten comes McCartney v Mills. I can't argue with this. Not only was it far and away the most high-profile family law case of the year, it was also of significance to more 'normal' divorces, as I mentioned in this post.

Other top ten cases that I have mentioned here previously are the failed negligence claim Williams v Thompson Leatherdale and Francis and the procedural warning from Mr Justice Munby in Re X and Y (Bundles).

The other four cases in the top ten are a bit of a miscellany. They comprise the publicity/human rights case Murray v Express Newspapers, the immigration/human rights case EM (Lebanon) v Secretary of State for the Home Department, the child abduction case Re M (Abduction: Zimbabwe) and the care case Re M (Fact-Finding Hearing: Burden of Proof). Not having studied these cases, I'll make no comment about them.

Would I have included any other cases in my top ten? Well perhaps Behzadi v Behzadi would have made it in because of the amount of ground it covered, the 'Barder-event' case Dixon v Marchant was important, as was the Brussells II case Bush v Bush. Finally, Re A (A Child: Joint Residence/Parental Responsibility) gave very useful guidance on the subjects of shared residence and parental responsibility.

Let us see what 2009 brings!

Wednesday, December 24, 2008

Have a Terrible Christmas

Full of Christmas cheer, the Guardian reports today that: "Councils across England are forecasting a surge in the divorce rate next month as couples succumb to the multiple pressures of Christmas, mortgage arrears and recession". This is, of course, good news for us divorce lawyers. So, my seasonal message to all readers is: go home, have a terrible Christmas, and make an appointment to see your divorce lawyer in the New Year. Oh, and don't forget to take your chequebook with you when you see them...

Tuesday, December 23, 2008

Family Lore Focus Update

Family Lore Focus has been updated with news, judgments and the best from the world of family law blogs, and will continue to be updated throughout the festive period, during which time I also hope to add more content to the site.

Sunday, December 21, 2008

Happy Winter Solstice

Today is the day for us all to celebrate, at least if you live in the northern hemisphere. The days may still get colder, but at least they will get longer. So, I wish all readers of Family Lore a happy winter solstice.

Saturday, December 20, 2008

Unhappy Xmas = Prosperous New Year!

With grateful thanks to Jailhouselawyer for bringing it to my notice, today I write to urge all married couples NOT to read the article 'How to survive Christmas as a couple' that appeared in the Telegraph yesterday. Look, Christmas is the best thing that happens to us divorce lawyers - don't spoil it by getting on with your spouse.

Looking forward to seeing you in the New Year!

Friday, December 19, 2008

Ladele: Council did not discriminate

Further to my last post on the subject, I'm glad that common sense has prevailed over bigotry, with Islington Council winning its appeal against the Employment Tribunal ruling that it had discriminated against Lilian Ladele. To recap, Ms Ladele was employed by the Council as a registrar, but refused to conduct civil partnership ceremonies, due to her religious beliefs. Fairly obviously, the Employment Appeal Tribunal ruled that: "The council were not taking disciplinary action against Ms Ladele for holding her religious beliefs. They did so because she was refusing to carry out civil partnership ceremonies and this involved discrimination on grounds of sexual orientation. The council were entitled to take the view that they were not willing to connive in that practice by relieving Ms Ladele of the duties". Ms Ladele is now appealing to the Court of Appeal - let's hope common sense prevails there also.

Thursday, December 18, 2008

Kids In The Middle

The DCSF has published a guide to help separating parents realise the impact of their actions on their children and provide them with support, including "an extensive list of links for further support for parents and for young people affected by separation, and other useful documents". The guide, 'Kids In The Middle' can be found on the DCSF website, in PDF format, here.

MacLeod v MacLeod: Post-nups valid

The much-anticipated judgment in MacLeod v MacLeod [2008] UKPC 64 has now been delivered by the Privy Council, and the decision was not as all had expected. Some experts had predicted that the court would rule that pre-nuptial agreements should be enforceable if drawn up properly. The court (quite rightly, in my opinion) decided that such a matter was for Parliament to consider, but did find that a post-nuptial agreement was "valid and enforceable".

Briefly, the facts were that the parties, who were both American, were married in Florida in 1994. The husband was considerably more wealthy than the wife and they had entered into a pre-nuptial agreement on their wedding day. The agreement provided for each spouse to retain the separate property which they brought into the marriage and for the ownership of after-acquired property to depend upon legal title. In the event of divorce each party waived their right to claim any sort of maintenance. Properties owned jointly were to be divided equally between them. In addition the husband would pay the wife a lump sum calculated as $25,000 for each full year that the couple had been married. It was also agreed that, regardless of where the couple might later live, the agreement should be construed in accordance with the laws of the State of Florida. The family moved to the Isle of Man. The marriage subsequently broke down, and the husband issued divorce proceedings in 2003.

During the marriage, two further agreements had been reached, in 1997 and 2002, and the court was concerned with the latter, which confirmed the 1994 agreement but made substantial variations to it, including a provision that, in the event of divorce or the husband’s death, the wife should receive £1,000,000 sterling, adjusted for inflation since February 2002. In ancillary relief proceedings the wife claimed full financial provision, asserting that the agreements should be disregarded, as "unfair pressure" had been put on her. The husband claimed that the third agreement should be upheld, which would have meant giving the wife £1.89m. The court on the Isle of Man rejected the wife's claim but agreed she should be given an additional £1.25m for accommodation, and said it should be paid directly to her rather than held in trust. The husband eventually appealed to the Privy Council ("the Board"), on the issue of whether the housing needs of the wife and children should be catered for by the lump sum, as ordered by the judge, or by a trust fund, as proposed by him, and the argument turned on the validity and effect of the 2002 agreement.

In her judgment Baroness Hale reviewed the law on the validity and effect of separation and maintenance agreements and concluded that: "The Board takes the view that it is not open to them to reverse the long standing rule that ante-nuptial agreements are contrary to public policy and thus not valid or binding in the contractual sense." She went on: "In the Board’s view the difficult issue of the validity and effect of ante-nuptial agreements is more appropriate to legislative rather than judicial development." The post-nuptial agreement, however, was different:
"Post-nuptial agreements, however, are very different from pre-nuptial agreements. The couple are now married. They have undertaken towards one another the obligations and responsibilities of the married state. A pre-nuptial agreement is no longer the price which one party may extract for his or her willingness to marry. There is nothing to stop a couple entering into contractual financial arrangements governing their life together, as this couple did as part of their 2002 agreement."
Accordingly:
"In the Board’s view, therefore, the 2002 agreement was a valid and enforceable agreement, not only with respect to the arrangements made for the time when the parties were together, but also with respect to the arrangements made for them to live separately. However, the latter arrangements were subject to the court’s powers of variation and the provisions which purported to oust the jurisdiction of the court, whether on divorce or during the marriage, were void."
The husband's appeal was therefore allowed, and the matter was remitted to the High Court for an appropriate trust deed to be drafted if it could not be agreed.

Wednesday, December 17, 2008

Ok Sorry

BBC News reports that: "One of South Korea's best-known actresses, Ok So-ri, has been given a suspended prison sentence of eight months for adultery." In a trial that caused a national scandal, Ms Ok failed in an attempt to have the law against adultery overturned for being an infringement of human rights. "I would like to say I'm sorry for stirring up such a controversy," she said after the court judgment. I confess that I did not know that adultery was a criminal offence in South Korea. If it were an offence over here the courts system would soon grind to a halt...

[Oh, and apologies for the awful pun in the title to this post.]

In the best possible taste

I think this has been around a while, but I've only just come across it:

The Divorce

Tuesday, December 16, 2008

Discounting Pension CETVs when Offsetting

There is a fascinating debate going on over on the Wikivorce Divorce Forum, on the subject of whether or not pension CETVs should be discounted when they are offset against other assets. Nigel Bradshaw of the Ancillary Actuary set out his thoughts on the matter in this post, and has since been taking part in the debate. As Nigel says: "The argument goes that as pensions are not readily realisable for cash then they are less valuable than other assets", but his "view is that all assets should be valued on the same basis, which is their market value assuming an orderly sale". I recommend a look at the thread, particularly for practitioners interested to read how those going through a divorce see the issue.

Keep up to date - and earn CPD

I hope that over the (nearly) three years that Family Lore has been going I have provided lawyer readers with some useful information, and helped to keep them up to date with relevant law. Well, shortly I and other English law bloggers will be offering a service that will not only help keep lawyers up to date with their law, but also with their CPD. By way of a demonstration, I have put a sample 1-hour CPD update course on the Family Law Focus website. The course gives an example monthly update for last August, comprising a podcast, a set of notes (in PDF format), and a questionnare. Feel free to have a look (and a listen).

The eagle-eared will recognise the dulcet tones of Charon QC in the podcast - he will also be taking part in this project, along with other well-known blawgers.

Not So Amicable

It seems that reports that Madonna and Guy Ritchie had reached a completely agreed settlement, with Ritchie making no claim against Madonna's fortune, were somewhat premature. BBC News has confirmed reports that Madonna has paid Ritchie around £50m as part of their divorce settlement, and that arrangements for their children have yet to be finalised. As I've said before, I'm not interested in whether this is the largest divorce payout, but I am saddened that things were apparently not as friendly as was first thought - a high-profile amicable settlement would have served as an example of how things can be done.

Thursday, December 11, 2008

Family Law Focus updated

I've updated Family Law Focus, including adding news headlines, judgments and the pick of family law blogs.

KSO v MJO & Ors: Litigation conducted at ruinous expense

If you're a lawyer and you've not read Bleak House, then your legal education is incomplete. Not for the first time it has been quoted in a judgment, on this occasion by the ubiquitous Mr Justice Munby, who was saddened and appalled by what he called "ancillary relief litigation conducted at ruinous expense to the parties". The case was KSO v MJO & Ors [2008] EWHC 3031 (Fam). I'm not going to go into the gory details of the litigation, but suffice to say it involved not just the husband and the wife but also the father-in-law and the mother-in-law, who between them made numerous applications, cross applications and even an appeal - at one earlier hearing the District Judge had been "overwhelmed with applications and issues". As a result of all of this litigation, Mr Justice Munby calculated that the matrimonial 'pot' had been reduced to "a wretched 28.22%" by the costs incurred.

As Mr Justice Munby said, the end result was unsurprising: "The litigation simply collapsed under the unsustainable burden of paying costs which had long since become wholly disproportionate to anything at stake and which, by the time the parties arrived at the FDR, had swallowed up a grotesquely large proportion of the never very substantial assets. On 26 November 2008 I received the news that the husband had earlier that day been declared bankrupt on his own petition."

Before quoting from Bleak House in an appendix to the judgment, Mr Justice Munby gave the following depressing summary:

"The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If, instead of spending – squandering – over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial 'pot' to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. As it is, it is hard to see much being left from the wreck, not least after the trustee in bankruptcy has had his costs, expenses and remuneration. It is difficult not to be reminded at this point of Jarndyce v Jarndyce (see the Appendix). And the wife and the husband – and for this purpose I refer to them as the mother and the father, for that is what they are – are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this."

Wednesday, December 10, 2008

One Law for All

The One Law for All Campaign against Sharia Law in Britain launches at the House of Lords today, International Human Rights Day, the sixtieth anniversary of the adoption of the Universal Declaration of Human Rights. The campaign is seeking legislation to curb the influence of sharia law in Britain. It has already received widespread support, and you can add yours by signing the Sharia Petition.

Monday, December 08, 2008

Family Lore Focus Update

The daily news update is now on Family Lore Focus, with several items referring to the new powers relating to contact orders, which came into force today.

For Better or Worse

As all family lawyers will be well aware, the new powers in relation to contact orders under the Children & Adoption Act 2006 come into force today. Frances Gibb in an article in The Times today suggests that the powers may actually 'worsen parent wars'. She says that: "Family judges have told The Times that the measures, although welcome in principle, could damage tense family relations, rebound on fathers as well as mothers and fetter judges’ discretion." As to the last point, she says that one judge has pointed out that the wording of the powers appeared to indicate that breach of a warning notice would require courts to impose penalties, with no discretion.

On the other hand, the new powers have been welcomed by others, in particular fathers' rights groups, albeit with reservations.

So, will the new powers make things better, or worse? As usual, only time will tell.

[Thanks to Current Awareness for the link to this article.]

Sunday, December 07, 2008

Of Pets and Men

It is Sunday morning. Muhammad is trying to rest in the sun. I am scanning my favourite blogs, and the news online.

"I must say, he bears a remarkable resemblance to Robert Redford." I said, pointing at the post on Charon QC.

"Remarkable." Replied Muhammad, rolling his eyes and yawning. "Excellent podcast though."

"Yes, this Scott Greenfield sounds a very interesting chap."

"Yes, a very interesting err... chap."

"Fascinating what he says about post-9/11 justice in New York."

"Fascinating and scary."

"Yes. He seems quite a funny chap too." I said. "He certainly has the measure of Geeklawyer."

"Well, so far as anyone can." Replied Muhammad, stretching his paws and returning to his slumber.

He was clearly more interested in his sleep than the news, so I said no more. Muhammad can be very grumpy when he doesn't get his sleep.

But then I found a story that I knew would interest him.

"Hey, look at this!" I exclaimed. "In the Guardian yesterday."

"What?" Asked Muhammad, irritably. He reluctantly stirred himself.

"An article about pets and divorce. Amazing."

"Why's that?" Asked Muhammad, dubiously.

""Eight years ago, Dr Stanley Perkins and his wife, Linda, a professional couple from San Diego, were reputed to have spent up to $150,000 in a two-year battle over who should get custody of Gigi, the pointer-greyhound cross-breed they had got from an animal shelter two years before."" I quoted.

"So? What's wrong with that?"

"Spending that much on who has a pet?" I replied. "Ridiculous."

Muhammad's tail began to wag in annoyance. "I don't see the problem," he said, "arrangements for pets after divorce are very important."

"But listen to this." I said: ""Reports by animal behaviourists, bonding studies and a Day in the Life of Gigi video were all presented to the judge, who ended up awarding custody to Linda, who had insisted during the hearing that she was Gigi's "mommy", and even produced a birthday card from Gigi saying as much." Crazy."

"I'm sorry," said Muhammad, "but I don't see anything crazy about that. Pets are people too." His tail wagged more vigorously.

I could see that it wouldn't be prudent to say any more on the subject, so I read on in silence.

Saturday, December 06, 2008

Let's keep it civil...

Somewhat belatedly my post 'Sorry but I can't sign this...' has been picked up by fathers' rights groups around the world, and they have been sending me their views, both by commenting and by email. Predictably, their reaction has at times been a little extreme. Look, gents, I know that some of you can't bear to countenance someone who dares to hold a different opinion, but I can only tell it as I see it.

I do appreciate feedback, whether in support of or against my views - after all, dialogue is what blogging is all about, and I apologise for the fact that I simply don't have the time to reply to those who have made serious points. However, such remarks as: "What sort of solicitor are you? One of the three monkeys are you. Clearly all three. Deaf dumb and blind" and: "Are you a femi-nazi John?" (whatever that is) are not acceptable, and do your cause a disservice.

Friday, December 05, 2008

Community Legal Advice News

I don't do legal aid work at present. Nevertheless, the other day I received a copy of the first Community Legal Advice News, a bi-monthly email newsletter to keep you updated with CLA service news and developments. If you haven't received a copy, you can view an online version here. If you would like to receive it by email, there is a link towards the bottom, where you can sign up.

Traumatized

I'll say no more about this:

Man granted divorce for being asked to hold wife's handbag in shop

Thursday, December 04, 2008

Fallon v Fallon: A fundamental error

It makes a nice change to come across a Court of Appeal ancillary relief decision involving people of modest means. Such was the case in Fallon v Fallon [2008] CA (Civ Div), where the husband was appealing against an order that (originally) required him to transfer an endowment policy to the wife, pay her a lump sum of £75,000 and make nominal periodical payments. At the first appeal it was accepted that the case had proceeded before the district judge on a general mistake of fact, namely that W had the right to buy 25% of the equity in her secured tenancy for a payment of £63,500. Nevertheless, the judge essentially confirmed the district judge's decision, as she "was experienced and careful and had reached her decision after a long trial".

The Court of Appeal found that the judge had made a fundamental error in relying upon the district judge's quantification (rather than looking at the s.25 factors afresh), when that quantification had been based upon a general mistake of fact. Applying the s.25 factors, in particular assets, needs, ages, the length of the marriage and contributions, the Court of Appeal reduced the lump sum to £40,000 and struck out both the order relating to the endowment policy, and the maintenance order. The primary reason for so reducing the wife's award, it seems, was that most of the capital had been acquired by the husband after the marriage had ended. Unfortunately, the Gazette report does not indicate what percentages of the total assets each party received, but it appears that the husband received substantially more than 50%.

Family Lore Focus Updated

I have updated Family Lore Focus, including adding the first article, on the New Children Act Forms.

Prop 8 - The Musical

You've seen my views on Proposition 8, now watch the musical:

Wednesday, December 03, 2008

Killer App for iPhone

OK, here's the killer essential App for all you iPhone geeks: the Marriage Calculator. Answer a few simple questions, and it will tell you how long your marriage is going to last. Brilliant - you can then book that appointment with your divorce lawyer months, or even years, in advance. A review can be found here.

Lady Judge Seeks to Re-open Settlement

The Times has reported the appeal of Lady Anne-Marie Judge, former wife of the Conservative "grandee" Sir Paul Judge, who is seeking to re-open her divorce settlement after seven years, claiming that the original distribution of assets from the marriage was based on a mistake, in that £14 million of the £30 million assets was discounted, as Sir Paul was thought to owe that to a charity, of which the couple were trustees. In the event, he persuaded the Charity Commissioners that he did not need to reimburse the charitable trust and so was better off by an extra £14 million. Lady Judge therefore claims that she is entitled to a further £5 million. Her application was refused by Mr Justice Coleridge, and she is now appealing to the Court of Appeal.

Looking forward to the outcome of this one, and reading the report.

Monday, December 01, 2008

Family Lore Focus

Regular viewers of this blog may have noticed that things have been a little quiet here over the last few days. Fear not, I have not been idle. I have been working on a new project that is just about sufficiently advanced for me to reveal to the world. Family Lore Focus will contain news and comment from the world of family law. The site is intended for serious content on the subject of family law, including news, case commentaries, legislation updates, articles and information about what other family law bloggers around the world are saying. More frivolous family law-related stories will continue to appear on this blog. Suggestions for content and submissions for articles to include on the site are welcome.

November Post of the Month

I always appreciate a serious review of a serious book, so it was not difficult for me to make my choice for the best post last month. Scott Vine at Informationoverlord has reviewed the latest edition of that perennial lawyer's favourite, Chitty on Contracts, and his post Chitty is therefore my November Post of the Month. In these iconoclastic days it's good to see an institution such as Chitty being given the respect it so richly deserves, and Scott does not disappoint, although I'm not sure about his suggestion that you should "give the one you love Chitty for Xmas this year", as you may find yourself in need of consulting me in the New Year.

The prize of a virtual Fender Strat signed by the one-and-only Mr Todd Rundgren is as we speak winging its way to the lucky Mr Vine.

Oh, and Scott, sorry I couldn't fit the full name of your blog on the trophy - I ran out of engraving space...

Tuesday, November 25, 2008

I Do (for now at least)


I did a post back in April about wedding rings inscribed with the bride and groom's initials in binary. Well, if that wasn't different enough for you, how about this, found via Boing Boing: wedding rings carved with the soundwave of the bride and groom saying "I do". The rings are the work of the Japanese designer Sakurako Shimizu. Perhaps she could do a divorce ring with the soundwave of "I don't"?

Domestic Violence News

Today is International Day to Eliminate Violence Against Women/White Ribbon Day, marking the start of 16 days of worldwide campaigning against 'gender based violence'. The White Ribbon Campaign is a global campaign to ensure men take more responsibility for reducing the level of violence against women.

Meanwhile, the Guardian today reports a speech given by Attorney General Baroness Scotland in Paris yesterday, ahead of International End Violence Against Women Day. In it, she stated that domestic violence costs the British economy £5.8bn a year, and significantly depresses women's ability to contribute to economic growth.

As the Guardian report mentions, the main provisions of the Forced Marriage (Civil Protection) Act 2007 came into force today. Forced marriage is a significant cause of violence against women. As a reminder, the Act enables a victim, friend or the police to apply for a 'Forced Marriage Protection Order', which can forbid families from actions such as taking people abroad for marriage, seizing passports or intimidating victims.

The only thing that I would add to the above is that men are, of course, victims of domestic violence as well as women.

Monday, November 24, 2008

Leave Your Emotions at the Courtroom Door

Like, I suspect, many solicitors I have been watching the strange goings-on on the other side of the profession in the BBC Series The Barristers. The latest episode included a section following family barrister Louise McCabe, as she represented a husband in an ancillary relief case. First we see them in a four-hour conference, during which McCabe is clearly doing her best to persuade her client to settle, rather than go through the expense of a 'day (or three) in court'. "I'm talking myself out of a three-day job... so there's no benefit to me in you settling this", she tells her client. But the words fall on deaf ears, the husband unable to see the logic of her advice through the emotion of his situation, and the matter proceeds to a contested hearing (which ends up costing the husband over £50,000).

We next see McCabe at court, where she is involved in a lengthy cross-examination of the wife. After twenty-five minutes of this there is an adjournment, as the wife needs a break - as does everyone else, acknowledges McCabe, the stress of the situation clearly reaching her as well as the parties. Perhaps the most poignant moment comes when, during cross-examination, the wife acknowledges that McCabe's client was a good husband. The hearing continues and, surprise surprise, the judge orders an equal division of assets.

Finally, we see McCabe at home that evening, when she acknowledges that it had been a hard day. Her job, she reflects, makes her very sure that she never wants to get divorced, or that if she does divorce then she does not want to go through 'this process'.

All in all, I think an excellent, albeit fairly brief, insight into 'the process', and into the workings of a lawyer's mind - perhaps enough to remind clients that lawyers are human too, even if they have to leave their emotions at the courtroom door.

Sunday, November 23, 2008

Sorry, but I can't sign this...

A couple of days ago I received an email requesting me to sign an e-petition "to Prosecute women who use false accusations to restrict fathers access to children". The details state:
"It is well know that many women lie to the police to prevent or restrict fathers access to their children. The Police and family courts not only turn a blind eye but their acceptance of this practice only encourages women to keep doing it.

Fathers are not guilty by default! They are usually the more level headed parent, willing to put the childs interests first and yet they are criminalised by the false accusations of their ex partners.

It is often the mothers who are breaking the law and putting their childs interests second to their own selfish and vindictive tendancies."
The email came from someone calling themself 'Justice in-the-family-court', although the petition was proposed by a David Reabow, who has previously proposed a petition "to Give children truly equal parents and bring back common sense to parenting."

Like all family lawyers, I have come across mothers who make false accusations against fathers in an attempt to stop them having contact with their children, but I can't sign this petition. In my experience completely untrue allegations are rare, and where they are made the courts certainly do not 'turn a blind eye'. I also do not think it is true that fathers 'are usually the more level headed parent' - I make no distinction between mothers and fathers, and nor should the law. However, my main reason for not signing is that I do not think it would be at all helpful if more mothers were 'criminalised' in this way. It is already, of course, an offence to commit perjury (perhaps parties should be reminded of this), and involving the criminal law any further in what is a civil matter cannot be to the benefit of anyone, especially the children.

Friday, November 21, 2008

Mr Justice Ryder's Vision

Mr Justice Ryder's Conkerton Memorial Lecture 'The Autonomy of the Citizen in the Context of Family Law Disputes' has been published (in PDF form) on the Judiciary website. In it, and not for the first time, Mr Justice Ryder gives his forthright views on the family justice system. He argues "for a family justice model which recognises that there are a myriad of ways of living one’s life in company with others which do not need prescription or validation from the state including the courts". "I suggest", he says, "that the time is ripe for an increasing emphasis on autonomy, social responsibility and flexibility of service delivery including in the legal domain to achieve a real benefit for individuals." In practice, he suggests, this could mean such things as greater legal weight for pre-nuptial and pre- or post-cohabitation agreements, and separate representation of (older) children becoming the norm.

He concludes by putting forward a number of options, including:
  • That, subject to the protection of the vulnerable, "the process and the judgment of the court should be subject to public scrutiny";
  • That there "be a presumption that the child who is Gillick competent in relation to a key issue should be provided with representation or an effective means of exercising their autonomy, for example by making representations to the judge";
  • That there should be "greater emphasis on alternative and more proportionate dispute resolution mechanisms" with "strong ground rules which can best be provided ... by codes of practice or guidance"; and
  • That "where the ground rules have been complied with the court should make available its enforcement powers to give effect to the agreements reached."
[Thanks to Current Awareness for the link to the lecture.]

Madonna/Ecclestone: Good News and Bad

I suspect that the media disappointment that we will apparently not be treated to another Macca/Mucca circus in the Madonna/Ritchie divorce (thanks to Jailhouselawyer for the original heads-up) may have been alleviated somewhat by the news that Formula 1 boss Bernie Ecclestone is to divorce, in what could be the biggest settlement in legal history.

If it is true that Madonna and Ritchie have agreed arrangements for their children and a financial/property settlement then I am genuinely pleased - this is obviously good news for them and for their children, even if not quite such good news for their lawyers. If Ritchie has agreed to make no claim against Madonna's estimated £300 million fortune, then this would appear to be generous on his part, although it is, of course, easier to be generous when you have a £30 million fortune of your own. Their decree nisi is being pronounced in London as I write this.

Turning to the diminutive Ecclestone and his rather less diminutive wife Slavica, they are estimated to be worth some £2.4 billion, making Madonna's fortune seem like small potatoes. What is it though with this incessant slavering over whose will be the biggest divorce settlement? This isn't some hideous competition, with a prize for the winner - this involves real people with real lives. Of course, as a lawyer I am interested in whether some new point of law emerges from the case, but the size of the settlement per se is of no interest to me whatsoever.

Thursday, November 20, 2008

White v Withers LLP: No cause of action

The case of White v Withers LLP & Anor [2008] EWHC 2821 (QB) deals with that all too common scenario where one spouse takes documents belonging to the other spouse, for possible use in ancillary relief proceedings. The new wrinkle here is that it was alleged by the husband that the wife took his documents "on the instructions or at the encouragement of [her] solicitors", Withers LLP. Unfortunately for him, the husband had no evidence to support this allegation, which was denied both by the wife and Withers, and his claim was struck out by Mr Justice Eady.

Points to note:
  • Obviously, it would be quite wrong to advise or encourage a client to take documents belonging to their spouse, and "where one spouse takes documents belonging to the other, intending to use them in matrimonial proceedings or to seek advice on them in that connection, and that involves intercepting post or breaking into (say) a desk, study or vehicle, the impermissible act cannot be excused merely because of the motive."
  • However, "a document "left lying around" can be copied and used in the proceedings, but it would not seem to be right to take and keep an original, especially perhaps when that involves concealing the document's existence altogether from the intended recipient."
  • Accordingly, a demand for the return of any such document should be complied with, but there is nothing to prevent the solicitors retaining a copy (the only criticism of Withers was that they had kept some original documents, rather than copies).
  • Withers contended that the husband's claim constituted an abuse of process, an attempt "to cause hassle for Mrs White and her solicitors – and perhaps to give rise to a conflict of interest such that they would have to withdraw" (the husband had previously failed in an attempt to have Withers taken off the record). However, Mr Justice Eady came to no conclusion on that, having already decided that the husband's claim disclosed no cause of action.

Wednesday, November 19, 2008

3 Day Week

It's nice to hear that partners at Britain’s ten biggest law firms took home an average of £1.1 million in profits last year (thanks, Current Awareness). Unfortunately, things aren't quite so rosy at the other end of the profession. In fact, it often feels like I'm not in the same profession at all. You see, since August I've been on a three-day week. I don't expect any sympathy - lawyers these days are held in such low regard, and others have lost their jobs entirely - but it does grate when I'm tarred with the same brush as the 'fat-cats', when I can now barely pay my rent.

Of course, if there is any employer out there who has some part-time work available for a hack family lawyer, then I could just be your man...

Tuesday, November 18, 2008

Hard Times

The arguments continue as to whether the economic downturn will lead to more or fewer divorces. In a survey of the American Academy of Matrimonial Lawyers, 37% of members responded that they typically see a decrease in the number of divorce cases during downturns, while only 19% said they saw an increase. I tend to agree that, if anything, there will be fewer divorces. What will further hit the profession, of course, is that fewer people going through a divorce will be prepared (or able) to pay large solicitors bills. There will therefore be a proportionate increase in litigants in person, and a greater willingness to compromise (the latter, of course, not necessarily a bad thing). My advice to budding family lawyers: do insolvency work instead!

Monday, November 17, 2008

Tory Reform Plans

As has been widely reported (see, for example, here), the Conservative party is likely to adopt a set of proposals to reform family law in this country, with the aim of 'strengthening families'. The proposals include the following:
  • Making it more difficult to divorce - I've not seen any detail of how they propose to do this, but it seems to fly in the face of recent trends towards no-fault divorce.
  • Making pre-nuptial agreements binding - something that is likely to happen anyway in the not-too-distant future, although I'm not sure that this will in fact encourage more people to get married save, perhaps, amongst the super-rich.
  • Preventing children losing contact with their fathers and grandparents - a laudable aim, but how?
  • Making divorce settlements 'more consistent' - does this entail doing away with our discretionary system?
  • Setting up a network of 'family relationship centres', which can help separating or divorcing couples. A nice idea (although I'm not sure how it will differ from Relate), but where is the funding going to come from?
  • Scrapping plans to give property rights to cohabitees, which are seen to undermine marriage - going against Labour policy that families of all kinds are equally viable, and that marriage is merely a 'lifestyle choice'.

Sunday, November 16, 2008

Potter under investigation again

I've asked the question before: should Sir Mark Potter, President of the Family Division, have given a character reference for Bruce Hyman, the barrister who was found guilty of perverting the course of justice in connection with a case involving family proceedings? As we all know, the Office for Judicial Complaints dismissed the complaint against him by Simon Eades, Hyman's 'victim', finding that the reference had been given by Potter "in his personal, not judicial, capacity, without any reference to his judicial position". What the OCJ did not know, however, was that the reference was originally made by Potter on his official headed stationery (see above). As The Observer reports today, the OCJ has now reopened the investigation.

Friday, November 14, 2008

Barmy

Let me tell you the tale of Dave Barmy. Dave was an old romantic at heart, albeit not one who liked to stray far from his PC to find love. And that's just what he did, meeting his first love in an internet chat room, going on to marry her, both in reality and in 'virtuality'. But Dave was not satisfied with this, so he returned to his Second Life (looking just slightly different from how he looked in reality), where he found his second love. Unfortunately for him, his attempts to conceal this from his wife failed, and now poor Dave finds himself divorced.

Thursday, November 13, 2008

An Unrealistic Goal

I'm only going to make one comment about the 'Baby P' tragedy. The Government has quite rightly announced a review, and hopefully that will lead to improvements in procedures in the future. What annoys me, however, is politicians and the media making fatuous statements along the lines that "we must ensure that this never happens again", or similar. I'm sorry, but this is simply not possible. Our system may not be perfect (and I'm saying nothing about the facts in this particular case), but thankfully it tries to keep children with their families wherever possible, and so long as that is the case then mistakes will occur and children will suffer (remember, the real culprits are the perpetrators of the abuse, not the local agencies involved). Of course, we should do everything we can to keep mistakes to a minimum, but to suggest that the system can 'guarantee' the safety of all children is a nonsense.

Tuesday, November 11, 2008

No Satisfaction

Back in July I mentioned the worrying case of Carol Williams, who was suing her lawyers for negligence for failing to advise her about the impending case of White v White, the decision in which could have led to her receiving a larger settlement. She claimed that in the light of this, her lawyers should have advised her not to settle, just three months before White was decided. It gives me little satisfaction to find that she has lost her case, as reported by the Telegraph yesterday. Mr Justice Field found her to be "a profoundly unreliable witness," whose "evidence was self-serving, evasive and, on occasion, knowingly untruthful". It seems that, far from being led by her lawyers, she was anxious to settle so that she could start a new life with her new partner. Sadly, and perhaps significantly, she has lost most of her £1.4 million settlement, due to ill-advised investments and legal costs.

The Telegraph report concludes with a quote from Carol Hill, a legal executive at Matthew Arnold & Baldwin, who said: "This is a cautionary tale for would-be dissatisfied parties. Don't necessarily assume that even if your solicitor hasn't told you everything that you are automatically going to be dashing back to court to get more money because it isn't going to be the case." How very true. I suspect that most family lawyers have come across this situation - there are so many things that could be relevant to our clients' cases that it would be unreasonable to expect us to advise of every possibility. Yes, sometimes we make mistakes and miss things that definitely were relevant, but that does not necessarily mean that that client has suffered loss for which we should be liable.

* * * * *

UPDATE: When I posted this this morning, I checked to see whether it had been reported on Bailli, but couldn't find it. Well, now it has been reported, as Williams v Thompson Leatherdale (a firm) & Anor [2008] EWHC 2574 (QB) (thanks, Current Awareness). I've not yet had a chance to read the judgment in full, but I note that Mr Justice Field concludes with the following: "As against Mr Francis [Nicholas Francis QC, her counsel], Mrs Williams has failed to prove that if she had been advised as she says she ought to have been by Mr Francis, she would have postponed any settlement negotiations until after the White decision. As against TL [Thompson Leatherdale, her solicitors], Mrs Williams has failed to show that the firm was negligent, and also failed to show that she would have repudiated the settlement agreement if TL had acted as she alleges they should have acted."

Monday, November 10, 2008

A Warning to Warring Parents

The Telegraph has reported what could be the first case in Europe of parents being prosecuted for psychologically damaging their child during their divorce. Prosecutors in Milan have asked a judge to charge the couple with ill-treatment of a minor after a health visitor reported that the child was "disturbed". Apparently, the couple regularly argued in front of the 12-year-old boy, despite him telling them that it was making him feel ill. They persistently tried to "discredit, devalue and undermine" the other in front of him, and manipulated him in an attempt to make him decide between them. As a result, it is alleged, the boy suffered anxiety and depression, and fell behind with his school work.

If this goes ahead, then it could open the floodgates of similar prosecutions. Even if it doesn't, it stands as a warning to warring parents of the effects of their actions upon their children - a topical point, coming just after the case of KSJ v WRW.

Sunday, November 09, 2008

Lest We Forget

Meet my great grandfather. I never had the chance to meet him myself. His name was Samuel Walter Bolch, and he was killed on the Somme on the 15th September 1916. He has no known grave. If only it had really been the war to end all wars.

* * *

What passing-bells for these who die as cattle?
-Only the monstrous anger of the guns.
Only the stuttering rifles' rapid rattle
Can patter out their hasty orisons.
No mockeries now for them; no prayers nor bells;
Nor any voice of mourning save the choirs,-
The shrill, demented choirs of wailing shells;
And bugles calling for them from sad shires.

What candles may be held to speed them all?
Not in the hands of boys but in their eyes
Shall shine the holy glimmers of good-byes.
The pallor of girls' brows shall be their pall;
Their flowers the tenderness of patient minds,
And each slow dusk a drawing-down of blinds.

- Anthem for Doomed Youth, Wilfred Owen.

Thursday, November 06, 2008

KSJ v WRW: Give the child a break

The case of KSJ v WRW [2008] EWCA Civ 1207 was reported yesterday on Bailli. It is an extremely sad tale of two warring parents who are completely unable to resolve matters between themselves, due to 'their mutual distrust and dislike of each other' - the words of Macur J at an earlier hearing. Apparently, the case has dragged on since April 2000, during which time almost 100 orders have been made, occupying the time of 11 judges. At a hearing as long ago as August 2004 Bennett J, clearly exasperated, concluded his judgment with these words: "Finally, I hope that this hearing really will represent the final round of hostilities. The mother and the father have a lovely daughter who brings them much happiness and to whom they are both devoted. If I may put it colloquially and bluntly: for her sake, give her a break." Unfortunately, his words fell on deaf ears, and the litigation has continued unabated.

This particular hearing took place in the Court of Appeal, where Lord Justice Wall considered no less than four different applications for leave to appeal, against four different orders, by the mother. I do not propose to go through the details of the applications and the decision (I'm not sure that there is any new law in there), save to say that it involved a Schedule 1 Children Act matter and that all four applications were dismissed. The lesson that is to be learnt from this case, however, is surely that we as lawyers must do everything in our power to bring parents together, and avoid this kind of intractable litigation.

That is not to say that I am criticising the mother's legal team (who acted pro bono). They clearly put every effort into the case, including preparing a skeleton argument that ran to 134 paragraphs over 48 pages. However, it does concern me that sometimes the lawyers can be complicit in perpetuating disputes. We may act for one of the parents, but we all also owe a duty to any children involved. For their sake, we must constantly remind our clients of the damage that their actions are doing to their children, and must not miss any opportunity to compromise.

I'm afraid that in this case, the mother continues to refuse to listen to reason. According to this BBC report (thanks, Current Awareness), she now intends to take the case to the European Court.

Crippling Ignorance

Following my last post, I'm disappointed to see that California has voted for Proposition 8, banning same-sex marriage within the state. Quite how the same people can also vote for Barack Obama who opposed the proposition and specifically mentioned including gays in his acceptance speech I don't know, but I'm sure that the San Francisco Chronicle is correct that religious prejudices had something to do with it.

How much longer will we be held back by such crippling ignorance? When will people simply learn to live and let live? If consenting adults choose to live their lives in a particular way without adversely affecting anyone else, then where is the problem? This week has seen a great victory against racism, but there is clearly still a long way to go.

Wednesday, November 05, 2008

The Audacity of Hope

It wasn't our election, but it will surely affect us all. I'm so pleased that America has made the choice it has, for surely now at last the words of Thomas Jefferson will ring true: "We hold these truths to be self-evident, that all men are created equal". Let that message spread across the world.

Monday, November 03, 2008

Contact provisions implemented at last

At last we know when the new powers to resolve contact disputes under the Children and Adoption Act 2006 will be implemented. The provisions will come into force on the 8th December (not the 25th November, as I was originally informed). Just as a reminder, they include:
  • giving the court power to direct a party to undertake a 'contact activity';
  • providing the court with the power to attach a contact activity condition to contact orders;
  • enabling the court to award financial compensation from one person to another for losses arising from failure to comply with the order; and
  • enabling the court, upon application, to impose an unpaid work requirement on the person who breaches the contact order (an 'enforcement order' - see this post).
The draft rules (including forms) can be found, in PDF format, here.

Saturday, November 01, 2008

The Week in View 1st November 2008



Jack Straw and Sharia (Divorce Survivor)

The Unverifiable Truth (Pink Tape)

Muttley Dastardly LLP: Credit-crunch is for wimps…. (Charon QC)

Mr Justice X….the beginning (Charon QC)

In the Matter of: Criminals on probation committed 120 murders in two years (Charon QC)

Hope

I just thought I would share this picture I took this morning of an adolescent swan. A little blurry, I'm afraid (it wouldn't stay still for me!), but still captures its beauty. A reminder, perhaps, that our children are our hope for the future? If so, I can extend the metaphor - the little blighter nearly took my fingers off when I fed it some bread!

October Post of the Month

Before setting out on my monthly quest around the blawgosphere this morning for the best post in October (in my, completely subjective, opinion) I checked my blog feed reader, and quickly realised that I need look no further. I have mentioned here before The Times Family Justice Campaign for greater openness (see, for example, here), led by campaigning journalist Camilla Cavendish. Well, yesterday she was at it again, in an article entitled 'First battered at home and then by the State'. Lucy Reed at Pink Tape has picked up on the article in an excellent post entitled The Unverifiable Truth, pointing out that Cavendish relies for her campaign on completely unverifiable accounts of injustice, usually coming from the, hardly unbiased, mouths of parents who have had their children removed from their care. For providing this much-needed balance to the argument of opening up family justice (with which Lucy agrees, incidentally), this wins my prize for the October Post of the Month.

And so what should be the prize? Well, Lucy became a mother a few months back, so I thought I would send her a virtual year's supply of sleeping tablets - I'm sure she could use them.

Friday, October 31, 2008

Pretty Bubbles

Way back in January I did a post about a new family law blog, then called The Editorial. This was to be part of an ambitious project to provide a place where family lawyers share their knowledge. Unfortunately, it was perhaps a little too ambitious, as it wasn't updated. However, the author informed me a while back that the project was being relaunched, under the new name Familybubble (no, I don't know where that name came from), of which the editorial is the blog. Now that it has some content I have amended my 'blogroll' accordingly, and I recommend it to readers. The attractive site also includes a forum, a resources page and a family law blogs feed. Let's hope that this time the bubble doesn't burst.

Wednesday, October 29, 2008

NG v KR (Pre-nuptial contract): Not enforceable, but does affect award

The current state of the law on pre-nuptial agreements received a pretty thorough airing in the case of NG v KR (Pre-nuptial contract) [2008] EWHC 1532 (Fam). Counsel for the Wife, Cherie Booth QC, raised a number of ingenious arguments in favour of upholding the pre-nup but, in a lengthy judgment, Mrs Justice Baron dealt with those arguments and essentially found in favour of the Husband.

The Facts: The Wife was extremely wealthy, mostly from inherited wealth, and she sought to protect that wealth by signing a pre-nuptial agreement which stated that the Husband would not seek anything from her if the marriage were to break down. That agreement was signed in Germany, her native country, shortly before the parties were married in England, in 1998. The parties had two children before they separated, in 2006. The Wife then issued divorce proceedings in this country, and the Husband (who had no assets, only debts) made a claim for ancillary relief, seeking some £9 million from the Wife's estimated wealth of nearly £100 million. The Wife claimed that, because of the pre-nuptial agreement (which would be valid in Germany), the Husband had no entitlement to ancillary relief.

I suspect that Cherie Booth knew full well how the court was likely to view the pre-nuptial agreement. Her task was therefore unenviable. She began by claiming that Section 34 of the Matrimonial Causes Act (which prohibits any restriction in a maintenance agreement of a right to apply to a court for a financial order) "was incompatible with the human rights of the Wife because the Act wrongfully restricted the Wife from entering into binding contractual relations with her spouse by way of an ante-nuptial agreement. It was submitted that the [agreement] had been nullified by no reason other than the parties’ move from one EU jurisdiction to another and such interference constituted a vertical inference by the State in the parties’ freedom to contract". However, by the commencement of the hearing Miss Booth had altered her stance so that she was no longer seeking a declaration of incompatibility. Instead, "she submitted that the Wife’s human rights were of central and highly persuasive importance so as to “boost” the [agreement] and make it the focus/starting point of any discretionary exercise". She further argued that the agreement fell within Section 34 and was therefore a valid maintenance agreement.

The decision: In her judgment Mrs Justice Baron deals with the human rights points, finding that the Wife's rights had not been breached and, most interestingly, reviews the case law on pre-nuptial agreements (paragraphs 109 to 129) concluding, unsurprisingly, that "pre-nuptial agreements remain unenforceable until adopted by the Court". As to the Section 34 point, the agreement did not fall within that section, as it had not been made during the continuance of the marriage. She also found that the agreement was flawed under English Law for a number of reasons, including that the Husband had received no independent legal advice, the Wife had not made full disclosure, and two children had been born during the marriage. However, she did find that the Husband: "understood the underlying premise [of the agreement] that he was not entitled to anything if the parties divorced. In essence, he accepted that he was expected to be self-sufficient. As a man of the world that was abundantly clear. His decision to enter into the agreement must therefore affect the award." She therefore awarded the Husband rather less than he was seeking, finding that a sum of £5,560,000 reflected his needs.

As an aside, I note that Mrs Justice Baron found that the Wife "truly believes that the Husband agreed to take nothing from her and she cannot understand why he is not simply held to his deal as he would be in Germany. She has a huge sense of injustice that the English Court, which has undoubted jurisdiction, should depart from the terms of the [agreement]. She has put up a spirited fight and deployed every weapon including some unwarranted slurs to achieve her end". She also pointed out that the enforceability of pre-nuptial agreements is to be considered by the Law Commission in its current programme, and has no doubt that they "will be a hot topic for debate over the next few months". I'm sure she's right there.