Friday, February 29, 2008

On Deaf Ears?

Families Need Fathers has written a letter to Alistair Darling regarding the 2008 Budget. In it, they draw attention to three areas:

The tax system: They state that it is "unfair and unrealistic" that both Working Tax Credit and Child Tax Credit assume that only one parent needs to be given financial support after a relationship breaks down, as: "Only in a minority of cases is only one parent involved in bringing up a child after separation. It is much more typical that both parents are involved, and necessarily they both incur costs... Both Credits need to reflect these social realities, by allocating the financial benefit pro rata to the genuine parenting costs incurred by each parent".

The benefit system: For the same reasons they consider it unfair that the holder of the Child Benefit book is viewed by the Department for Work and Pensions (and the Child Support Agency) as the 'primary carer' of a child for benefit purposes: "Child benefit should be allocated equitably and only then should it operate as a passport to other benefits."

Court administration: Interestingly, and perhaps controversially, they propose that family law cases should not be eligible for legal aid: "This only serves to strengthen the adversarial culture which splits up children from their parents after divorce and separation". They also point out that the recent fee increases "have placed an unreasonable burden on many applicants, who are going through a highly stressful experience and are often among the financially excluded".

Some very good points, including some I've made here before, but I'm afraid I don't expect the Chancellor to pay much attention.

Wednesday, February 27, 2008

Agreeing Arrangements for Children

Sorting out arrangements for children when their parents separate can be an extremely frustrating process for lawyers. In the vast majority of cases the parents should be able to agree arrangements without recourse to lawyers or the courts, but all too often they fail to do so, either because they don't understand the principles involved, or they have a different agenda, such as using the children against the other parent, or manipulating arrangements to achieve a better financial/property settlement. So, I thought it might be useful to set out some guidelines to help parents resolve matters by agreement:
  • Firstly, think of practical considerations. If one parent works full-time and the other does not, then the one that does not may be in a better position to look after the children. If one parent has suitable accommodation for the children and the other does not, then the children would obviously be better off residing primarily with the parent with suitable accommodation, at least until the other parent has somewhere suitable for them to live.
  • On the other hand, if all else is equal, consider a shared residence arrangement whereby the children spend equal amounts of time with each parent, especially if the parents do not live too far apart, or too far from the children's schools.
  • Consider the wishes of the children. Obviously, many children do not want to be put in the position of choosing between their parents and do not therefore express a clear wish one way or the other, but think about what they would want, such as staying close to their friends.
  • Keep arrangements flexible if possible, but ensure that each parent must give the other reasonable notice of any change in arrangements.
  • If it has been agreed that the children will reside primarily with one parent, ensure that they have regular contact with the other parent, and that they have the means to contact that parent whenever they wish, for example by phone.
  • Above all, keep personal animosity out of the arrangements. You may have strong feelings about the other parent, but don't use the children as a weapon to vent those feelings. For example, the other parent may be in a new relationship and you may not want the children to come into contact with their new partner, but consider whether there are any good reasons to prevent such contact - there rarely are, so long as the children are introduced to them in a sensitive way.
These are just a few thoughts, and are not intended as a comprehensive guide, nor are they 'hard and fast' rules - no two cases are the same, and each should be considered in the light of what is best for those particular children.

Tuesday, February 26, 2008

The Cat and the Cornflakes

I didn't realise my cat Muhammad was awake as I scanned though the news items on the BBC website whilst eating my breakfast today. He was curled up on my lap, having just come in from his early-morning constitutional. He does, however, like to keep up with important world events, so he must have had one eye open. Then I clicked the link to this story. Have you ever heard a cat laugh out loud? Nearly made me choke on my cornflakes.

"What's the matter?" I asked, milk dribbling down my chin.

"You humans," he said, "are the funniest creatures."

"Why do you say that?"

"Marrying two monkeys in a Hindu ceremony!" Exclaimed Muhammad.

"What's wrong with that? - Perfectly reasonable."

"Well, everyone knows monkeys are Buddhists!" Replied Muhammad, giving me a sly look.

"Are they?" I asked.

Muhammad rolled over, giggling. For some reason, I sensed he was teasing me.

"You're having me on." I said.

Muhammad let out an exasperated sigh. "You humans," he said, "will never make anything of yourselves while you behave like this."

"You mean, marrying two monkeys is silly?"

Muhammad licked his tail thoughtfully. "Well," he said, "I suppose there could be some business in it for you." He purred.

My eyes lit up. "You're right." I said. "When they divorce!"

Monday, February 25, 2008

Justice Mocked

The Independent today has a harrowing interview with Sayed Pervez Kambaksh, the Afghan student who was sentenced to death for downloading a report on women's rights from the internet, after a four-minute hearing during which he was not even allowed to speak in his own defence, let alone have access to a lawyer. Good job we "liberated" his country from the religious tyranny of the Taliban and installed a democratic government.

I suggest that all right-thinking people, and certainly all lawyers, sign the Independent's petition urging the UK Foreign Office to put all possible pressure on the Afghan government to prevent the execution of Mr Kambaksh.

Not Our Business

The latest Grant Thornton survey of "100 leading divorce lawyers in England and Wales" reveals that increasing numbers of people are divorcing because of "mid-life crisis", according to a report in the Guardian today. Extramarital affairs were once again the most common cause of marriage breakdown but, as Mark Harper of Withers pointed out it can be difficult to distinguish between divorces caused by affairs and those caused a mid-life crisis: "They have affairs because they're having a mid-life crisis. How do you distinguish the two?". After extramarital affairs and mid-life crises "family strains" were the third most common cause of marriage breakdown.

All of this may be of interest to sociologists and others, but I've always felt that it should not be the business of family law to pry into the reasons for marriage breakdown or to apportion blame, unless it involves extreme behaviour, or has a bearing upon arrangements for children. Unfortunately, our current divorce system requires one party to blame the other entirely for the breakdown, unless the parties have been separated for two years, but this is usually an over-simplification, as Mark Harper suggests. Adultery is often a symptom of underlying problems within the marriage, and unreasonable behaviour by one party is often matched by equally unreasonable behaviour by the other party. If we bring in a completely no-fault divorce system then we can leave it to the sociologists to work out the true reasons for marriage breakdown, and let the lawyers get on with the job of sorting out arrangements for children and finances, in a blame-free environment.

Sunday, February 24, 2008

Responses to Family Procedure Rules Consultation

I've now had a chance to digest the responses to the Family Procedure Rules consultation paper, published on the 22nd February. These things move extremely slowly, so I'll begin by recapping. The original Consultation Paper was published way back in August 2006 and, as I mentioned in a post at the time, set out four 'key objectives' for the new Rules: "modernisation of language, harmonisation with the Civil Procedure Rules, a single unified code of practice and alignment in all levels of court", and sought views upon how these objectives can be realised.

The first thing I noticed was how few of the responses came from individuals involved in the family justice system. Whether this was due to apathy, leaving it to their professional bodies or simply satisfaction with the original proposals I cannot say, but as the report states, the majority of specific proposals were supported.

So, what were the responses? Here are some of the main points:
  • Service by email in family proceedings was supported, but many favoured more stringent restrictions on its use than in civil proceedings, given the personal nature of family proceedings and the perceived lack of security compared to other modes of service.
  • Generally, the proposed new terminology was supported and will go into the new Rules, although there were some who felt that 'Conditional Order' (replacing 'Decree Nisi') and 'Final Order' (replacing 'Decree Absolute') was confusing. 'Maintenance pending outcome of proceedings' (replacing 'maintenance pending suit') was felt to require further simplification. The term '2nd respondent' will replace both 'party cited' and 'co-respondent'.
  • The majority agreed that Statements of Truth should replace affidavits.
  • There was overwhelming support for the ancillary relief rules to apply to other proceedings, including Schedule 1 Children Act applications, and most felt that a simplified version should apply to financial proceedings in magistrates courts.
  • The majority of respondents felt that it was appropriate to separate financial applications from the matrimonial/civil partnership proceedings.
  • The proposal that certain procedures in the magistrates’ courts be aligned with the procedures in the county courts and High Court was very strongly supported.
  • Lastly, the proposed changes to the procedure for appeals from decisions of magistrates’ courts in family proceedings were supported by an "overwhelming majority", so that there will be a single form of appeal notice, and all such appeals will go to the county court, rather than the High Court.
Overall, it seems that there will be little change to the original proposals. The Family Procedure Rule Committee will now consult on a set of draft rules, although I understand from the Family Law Week blog that this will not be until the end of the year, so the new Rules are still some way off.

Saturday, February 23, 2008

Delirium Tremens

It's pathetic. I've been away or otherwise engaged this week (hence the paucity of posting), and as a result I've been completely without access to the internet on occasions. During those periods, I've found myself to be suffering severe withdrawal symptoms, desperate for a blogging fix, or at least a check through my bookmarks. Thankfully, normal service has now resumed.

One internet addiction from which I have never suffered is social networking sites. However, the Telegraph warns today that flirtatious communications on such sites could soon be cited as unreasonable behaviour in divorce proceedings. Apparently, some 13.7 million Britons are hooked to social networking, and many of them are oblivious of the effect of what they are doing upon their spouses. Perhaps the odd period of internet abstinence may benefit their marriages, even if it doesn't do much for their own well-being...

Wednesday, February 20, 2008

Berkeley v Bulliqi, Some Advice... and a Banana

The Telegraph today reports upon Miss Berkeley's appeal, which went before the Court of Appeal, including Sir Mark Potter, yesterday. I mentioned this case previously, in this post, and Linda Berkeley herself commented upon the post. Details of the case can be found in the report of her application for permission to bring a second appeal, but briefly the issue is whether or not there should be a departure from equality, in the light of the fact that the whole of the capital had been hers from before the marriage. Representing her, James Turner QC argued that: "It offends against the principles of fairness to treat the wealth in the present case as if it had all been acquired by the joint efforts during the relationship" and that: "There are very powerful reasons, indeed overwhelming reasons, to justify and require a departure from the equality principle." Judgement was reserved, and will be awaited with interest.

Meanwhile, the Telegraph also today gives advice upon how to avoid having to go to court to sort out financial settlements on divorce. Their suggestions include instructing specialist lawyers as early as possible and going to mediation. The article then goes on to briefly explain the principles upon division of assets, maintenance and pre-nuptial agreements.

Lastly, I wasn't intending to comment again upon the McCartney/Mills divorce (unless there was a major development), but this report on the BBC amused me. It describes the futile attempts by reporters at the High Court last week to to find something newsworthy to report upon. So short of information were they that they were "reduced to analysing facial expressions, clothes and, at one point, a banana in the desperate search for something to say about a court case they are not allowed to report". Why a banana? Well, apparently one morning it was noticed that the only thing being carried into the court that wasn't a legal document was a banana, and it was suggested that this meant that the McCartneys had decided to work through the lunch break, which could mean a settlement was in the offing. "We soon realised we'd reached new levels of insanity", says the BBC correspondent. Indeed.

Monday, February 18, 2008

A Brutal Outcome

The case of E v E, reported in this month's issue of Family Law, serves as a salutary reminder of the 'remarriage trap' for practitioners. For those who are not aware of the remarriage trap, it is the rule that you cannot make an application for a financial/property settlement ("ancillary relief") after you have remarried. You must therefore ensure that the settlement is finalised, before tying the knot again.

The facts in E v E were that the wife petitioned for divorce in 2003 and the decree absolute was pronounced in September of that year. A financial settlement was agreed and in July 2005 a draft consent order was drawn up whereby the wife was to pay the husband a lump sum of £250,000. The order included the common recital that the agreement was only to be binding in the event of the court making an order in its terms. The husband remarried on the 12th August 2005. A few days later the order was filed with the court, along with the husband's Form A application for ancillary relief, for dismissal purposes. Questions then arose as to the court's jurisdiction, in the light of the remarriage trap. The husband then applied to have the draft order approved. Mr Justice Singer refused the application - the husband had fallen into the remarriage trap, and the court had no jurisdiction to approve the consent order.

As the comment to the report says, a brutal outcome, but it is not as if the trap had not been exposed before.

Saturday, February 16, 2008

Divorced From Reality

Here's a story that will strike a chord with my seventeen year old son. A Californian woman has divorced her husband citing a "crippling addiction" to World of Warcraft. For those of you without teenage children, World of Warcraft is an online computer game, or MMORPG (translation: Massively Multiplayer Online Roleplaying Game). "He would get home from work at 6:00, start playing at 6:30, and he'd play until three a.m. Weekends were worse -- it was from morning straight through until the middle of the night," she said. Yep, that seems like unreasonable behaviour to me. Ironically, she originally gave the game to her husband as a Christmas present, having briefly worked for the company that developed the game.

All of this may sound amusing, but expect such things to be regularly cited in future divorce proceedings, as more and more people favour their virtual existence over their real one.

Thursday, February 14, 2008

A Risky Strategy

In the wake of the decision by Heather Mills, District Judge Stephen Gerlis explains in The Times today the disadvantages of representing yourself in court in matrimonial financial proceedings. Recommended reading for anyone contemplating emulating Ms Mills.

This Thing Called Delusion

Is there such a thing as 'romantic love', or is it just a delusion, perpetuated by purveyors of red roses and tacky cards? Is it not the case that we are all just selfish creatures, with nothing but self-interest at heart? Yes, we do form relationships, and we do get married, but perhaps that is just because at that moment in two people's lives their self-interest coincides. To then expect that self-interest to remain in unison for the rest of those two lives may be hopelessly unrealistic. This certainly seems to be borne out by the increasing numbers of older couples that get divorced today, and by the recent statistic that 59% of wives would leave their husband if they could afford to do so. So, who does your partner really love - you, or just him/herself?

Happy Valentines Day!

Wednesday, February 13, 2008

Divorce, Scottish Style

For any Sassenachs wanting to know the basics of Scottish divorce law, Fiona at Divorce Survivor has written a useful series of posts here, here and here. Interesting to see the differences from, and similarities to, the English system.

Money Before Love

Robert Verkaik, legal editor of The Independent writes today about pre-nuptial agreements, with particular reference to the Crossley case. I have of course already written about Crossley, here and here. Verkaik suggests that "the thousands of couples who pledge their troth on St Valentine's Day may find it would pay to spend a little time proposing the idea of a pre-nuptial agreement too". He points out that whilst pre-nups are not legally binding, the Court of Appeal in Crossley "showed that if both parties had given their free consent to the terms of a contract, then the court would try to honour it". One thing that I was not aware of is that "Mrs Crossley is understood to have now abandoned her claim against her husband, leaving the contract intact", although it seemed that she had little choice.

Thanks to that old romantic Charon QC for the link to this article. I shall be posting my own thoughts on the subject of romance tomorrow.

***

Update: The Times has confirmed that Mrs Crossley has abandoned her claim, calling her decision "a boost to the status of prenuptial agreements" (thanks to Current Awareness for the link). On the other hand, the Financial Times feels that the decision leaves uncertainty as to how pre-nups will be enforced, as the court will not be adjudicating the issue.

Tuesday, February 12, 2008

The Squat

Just a quick post to say that, due to unfortunate circumstances, Geeklawyer's blog is currently squatting in temporary chambers, here.

Monday, February 11, 2008

Intermission

Straight off of Boing Boing, and nothing whatsoever to do with family law, here's one of the best optical illusions I've seen in a while. The "blue" tiles on the top face of the left cube are the same colour as the "yellow" tiles in the top of the right cube. If you don't believe it, check it out with an eyedropper in an image editing program - Paint will do, assuming you don't have a Mac...

Looking for a Divorce

I quite often advise clients who want to get divorced but don't know the whereabouts of their spouse, but I've not come across this before. A judge in Manitoba has given Thomas Dean Kane permission to run a commercial on Vancouver radio station CKNW pleading for information about his long-lost wife, so that he can divorce her and remarry. "Here is a man looking for a divorce," the advertisement begins, before asking anyone who knows the whereabouts of his wife to get in touch with his lawyer. Kane has apparently exhausted every other method of finding his wife.

Sunday, February 10, 2008

The Bishop, the Beatle and the Beards

After comparing notes on our new beards, I enjoyed another interview with Charon QC this morning, this time discussing the furore surrounding the Archbishop of Canterbury's comments upon Sharia law, and the McCartney/Mills divorce settlement, due for hearing this week. The podcast can be found here.

For an insight into the daunting task that Heather Mills is potentially facing representing herself, see this excellent post by Marilyn Stowe.

Saturday, February 09, 2008

Equal under the law

The Times today reports the case of barrister and Crown Court Recorder Lincoln Crawford, who was convicted for harassing his ex-wife and her new partner in September 2005. Crawford had successfully argued that his conviction should not be reported because the publicity would be harmful to his two children. However, on Friday the High Court ruled that the anonymity order should never have been made, after hearing submissions from The Times.

The report seems to suggest that Crawford was using his position as a barrister and judge to receive special treatment from the court, but I am not so sure. Counsel for the Crown apparently said: “Barristers and part-time judges with children today, politicians tomorrow: where does it end?”, and Lord Justice Thomas said in his judgment that everyone was “equal under the law”. However, there is nothing in the report to suggest that Crawford had argued anything other than that the publicity would be harmful to his children, something that anyone with children can argue, although obviously only cases involving people of public standing or celebrities are likely to attract publicity. Having said that, I agree with the High Court ruling - anonymity should only be granted where there would be particular harm to the children, and the High Court found this not to be the case.

Friday, February 08, 2008

Another old chestnut

Going back to the post that I wrote a couple of days ago, I'd like to dispel another old chestnut about adultery: that you can't commit adultery after you have separated from your spouse. Wrong - you can. It is still adultery - there is no requirement that you are living with your spouse, only that you are still married to them.

It would be nice to think that everyone I deal with reads this post and I never have to explain the above again, but I suppose that is a forlorn hope...

Information for the Deluded

Jacqui Gilliatt on the Family Law Week blog puts the asinine spoutings of the Archbishop of Canterbury into perspective when she quotes an American commentator: "What do you expect from someone that believes in a giant invisible being that lives in the sky, knows everything, created everything, and talks to humans in their language. Give me a break." Wise words. If you should come across anyone suffering from the same sort of delusion as Rowan Williams, refer them to The God Faq, which contains all the information they require.

Thursday, February 07, 2008

Don't Offend the FSM

Oh dear. I see that the Archbishop of Canterbury has weighed in to the debate on Sharia law, and is suggesting that adopting parts of Sharia law, such as dealing with marital disputes, could 'help social cohesion'. He states that it's "a bit of a danger" to say that "there's one law for everybody and that's all there is to be said, and anything else that commands your loyalty or allegiance is completely irrelevant in the processes of the courts". Sorry, but this is an absurd statement. Its logical conclusion would mean that you should be able to pick and choose what decisions of the court to respect, based upon your 'loyalty or allegiance' and, ultimately, that all 'loyalties and allegiances' must be adopted by the legal system. After all, we can't discriminate against some belief systems but not others - if we did, what would the Pastafarians have to say about it?[For another view of Rowan Williams and his ideas, see this post at Head of Legal.]

National Domestic Violence Helpline

The BBC reported yesterday another tragic case of a wife killing her husband after suffering years of abuse from him. Rina Begum was found guilty of manslaughter and sentenced to four years in prison, so her five children will be deprived of a father and, for the duration of her custody, a mother. The case may give rise to calls for further protection for victims of domestic violence, but I'm not sure what can be done to strengthen the law. It seems to me that what leads victims to such acts of utter desperation is the feeling that they are alone and that there is no way out. Well, they are not alone and there is a way out, so I thought it worth setting out here the number of the National Domestic Violence Helpline, run in partnership between Women's Aid and Refuge:
0808 2000 247

The line is open 24 hours a day and calls are free.

Wednesday, February 06, 2008

A Very Different Firm

I received an email last night from Lee Rosen, founder of the Rosen Law Firm, of North Carolina. Lee's biggest claim to fame may be that he is a distant cousin of William Shatner, alias Captain Kirk, but he has created a very different kind of family law firm, as a quick look at their website will confirm. The site is packed with helpful advice and tips for clients going through divorce and separation, much of it in video form, and even includes a forum where visitors can post questions on legal issues and get a response from an attorney. The firm also has another site, Stay Happily Married, "dedicated to providing resources to help couples who want to stay together".

The website explains that they "are a law firm that serves mainly, but not exclusively, technology and business people, and our practice is adapted to serve that highly trained and sophisticated population". This clearly comes through in the design of the website, which gives visitors as much information as possible, something that such clients would expect.

Although I have visited a number of US law firm websites, I do not consider myself to be an expert. I have not previously seen a site like this, and would suggest that UK law firms might learn a thing or two from a visit.

Tuesday, February 05, 2008

Pools of Sorrow, Waves of Joy

The tragedy that is the McCartney divorce continues, as reported by the Telegraph tonight. Apparently, Lady McCartney's former lawyers are chasing her for up to £2 million in unpaid bills, and she may take legal action of her own against them because, according to a 'source', she has got nothing for her money. She is due to represent herself at the final hearing next week.

Meanwhile, yesterday NASA transmitted The Beatles' song "Across The Universe" in the direction of the North Star Polaris, to celebrate 'Across the Universe Day', the 40th anniversary of the day The Beatles recorded the song, the 50th anniversary of NASA's founding and the 45th anniversary of the founding of the Deep Space Network.

Get rid of the Get

In the comments to this post I discussed the Jewish form of divorce, the 'Get', and its special status in English law (something that has not escaped the notice of the Islamic community). I explained that the Get does not replace a civil divorce (which is still required to legally dissolve the marriage) and said:
The Get is only needed so that the divorce is recognised by the Jewish community. Without a Get any sexual relationship by the wife with another man will be regarded as adultery under Jewish law, even if she has a civil divorce. Further, if the wife conceives a child by another man then that child and all its descendants will be a 'mamzer' (i.e. religiously illegitimate) for all time, and will not normally be able to marry another Jew. The only special status that the Get has in English law is that one party (normally the wife) can apply to the court for the decree absolute to be stayed until the court is satisfied that the marriage is also dissolved in accordance with Jewish law.

I've been giving this further thought, and it seriously concerns me that a religious form of divorce has been given special status under English law. I can see the rationale - to ensure that the wife is not seriously disadvantaged within her own community - but isn't this approaching the problem from the wrong angle? Surely, instead of kowtowing to the sort of religious nonsense set out above, the law should prevent discrimination against anyone on the basis of whether or not they (or, worse still, their parents) have been through a process that has no basis in the law of the land?

That old chestnut

Still on the subject of adultery, I wanted to dispel one of the myths: that an admission or finding of adultery will adversely affect your financial settlement. It will not. This was the case many years ago in the days of the 'matrimonial offence' (before my time!), and could have serious consequences, such as a 'guilty' wife not being entitled to maintenance. Nowadays, adultery by itself has no effect upon the financial settlement, although it could result in the 'guilty party' being ordered to pay the costs of the divorce itself. Conduct can have a bearing upon the financial settlement, but it has to be exceptional, and adultery alone is not exceptional. Of course, if the 'adulterous spouse' has formed a permanent relationship with the other person, then that would be relevant to the settlement, but only because of the effect (if any) of the relationship upon that spouse's financial circumstances.

Right, I hope that's cleared that up!

Down Memory Lane #2

Some months ago I wrote a post about affiliation orders, intending it to be the first in a series of posts detailing changes I’ve seen in family law in the 25-odd years that I've been doing this work (sometimes it seems even longer than that...). Well, I've finally gotten around to writing the next in the series, this time dealing with the subject of naming co-respondents in adultery divorce proceedings.

When I first started doing divorce work the rule was that a petitioner issuing a divorce petition on the basis of the respondent's adultery had to name the other person involved in the adultery, if his/her identity was known to the petitioner. Once named, the other person would become a party to the proceedings (the 'co-respondent'), and would have to be served with the divorce papers. Apart from creating unnecessary animosity, this could cause considerable difficulties for the petitioner, for example if the co-respondent refused to acknowledge service of the divorce papers upon him/her. As a result, many petitioners would falsely state that the identity of the adulterer was unknown to them, but this would involve perjury, and even a risk that the divorce decree could be rescinded if the false statement was discovered.

Thankfully, the rule was changed. If memory serves me correctly, the change came with the implementation of the Family Proceedings Rules 1991, which left it to the petitioner as to whether or not he/she named the co-respondent. Nowadays, the only good reasons to name the co-respondent are to prove the adultery (unusual - if the respondent does not admit the adultery, then the co-respondent is unlikely to do so), or so that the petitioner can claim costs against the co-respondent, although there are unfortunately instances when the petitioner merely wants to name the co-respondent out of spite or revenge.

Monday, February 04, 2008

Disclosure of Address

A question that I'm often asked in the course of children disputes is whether or not each parent has a right to know the other's address. The answer is that there is no rule that one parent must disclose their address to the other. This comes as a surprise to some parents, who believe they have a right to know where their children are living. Having said that, courts do usually prefer addresses to be disclosed unless there is a good reason why they should not, such as a history of domestic violence or harassment. If the address is not disclosed then there should obviously be some means of communication open between the parents, such as telephone or email, save in exceptional circumstances.

What if the 'absent parent' wishes to apply for an order in respect of the children, such as a contact order, but does not know the whereabouts of the children? The answer is that they can apply for an order under section 33 of the Family Act 1986 requiring "any person", such as a relative, to disclose information to the court as to the whereabouts of the children. Note that the order directs that the information be given to the court, and not to the parent. Once the whereabouts of the children is known, the original application can proceed.

Sunday, February 03, 2008

The Hidden Agenda of Sharia Law

I have just watched Divorce Sharia Style on Channel 4, the programme referred to in the Telegraph article mentioned in this post.

The programme emphasised that many of the people who use Sharia courts in this country seek clarification from the residing sheiks as to what is Islamic Law and what is 'merely' culture. There certainly seems a lot of confusion amongst the Muslim community as to where the dividing line lies. The problem, of course, is that the sheiks have to interpret Islamic Law. Now, this isn't the same as a judge interpreting the law of the land. A judge has a set of rules set out specifically to codify the laws, whereas religious laws are gathered from religious texts dating from antiquity, and are notoriously subject to conflicting interpretations. To suggest that such a system should be used in a modern democracy is utter nonsense.

I don't want to comment upon the specifics of Sharia Law, as that has been done elsewhere, although I did notice with concern that in 'extreme cases' three sheiks have the power to dissolve a marriage without even hearing from the other party.

What concerns me most of all though is whether there is a thinly hidden agenda in the calls for Sharia Law to be adopted in this country. Its proponents talk of 'making the government's burden lighter' and turning this country into a 'haven of peace', but go on to threaten that we will need even more prisons if Sharia, with its strict rules and punishments such as flogging, stoning and amputation, is not accepted. If that prospect were not abhorrent enough, one of the sheiks featured in the programme has been secretly filmed declaring that Sharia will turn this country into a Muslim state, which will then launch jihad against the 'infidels', or unbelievers. Hardly any reasonable person's idea of a 'haven of peace'.

Saturday, February 02, 2008

Ringing the Wedding Bell

Back in December I wrote a post about an Indian man who was divorcing his 'wife', despite claiming not to be married to her. Now a similar story is grabbing the media headlines in the subcontinent. The captain of the Pakistan cricket team, Shoaib Malik, is involved in a dispute with Ayesha Siddiqui, who wants a divorce from him, but Malik claims he can't divorce her because they were never married. Mind you, it's not entirely surprising that there is some confusion over the marriage when one looks at the ceremony which, it is alleged, took place over the phone. Apparently, such a ceremony can be valid - just hope you don't get a crossed line...

Friday, February 01, 2008

Protect the Innocent

I don't know whether it is a requirement that divorcing Taiwanese couples must jointly file divorce documents with the 'Household Registration Office', but it certainly seems like a bad idea to me. The China Post reports today two cases in which the husband assaulted the wife in the course of the filing process. In the first case, the wife was fatally wounded. In the second case, the husband allegedly attempted to murder the wife but was overpowered by a police officer, and that brings me to the point of this post: court security.

All those involved in the family justice system are fully aware of the level of emotion that can be stirred up in family court cases, and that that emotion can often spill over into anger and aggression. Indeed, many cases are concerned with allegations of aggression and violence. I'm sure most family lawyers have experienced that feeling of trepidation as to how a party is going to react to a decision that is not going to go their way. Despite all of this, most family courts in this country have no security whatsoever. If a party were to become violent then the only people to stop them would be the lawyers and court staff. How long before someone gets seriously hurt? I realise that any suggestion that all courts have security staff will fall on the deaf ears of those holding the purse strings, but nevertheless I feel that it should be given consideration.