Thursday, July 31, 2008

Man-nequin

A man in Pennsylvania has come up with a novel way to solve the perennial problem of how to finance his divorce - sell his wife's wedding dress on eBay! Under the slogan "Selling dress to pay for divorce! Wife cheated" the man, who I only know as 'Jimmy', is seen posing in the dress, which may demonstrate he still has a sense of humour, but probably doesn't show the dress off to its best, which may account for the fact that the current bid is only $56.99. He says that the dress has never been used, as it was purchased so that he and his wife could renew their wedding vows, but this never happened. Instead, his wife left him, taking everything with her save for credit card debt and the dress.

Two Fathers?

Thanks to lo-fi librarian for pointing out to me this interesting case reported in the Telegraph. The Court of Appeal has upheld a decision of Bath County Court granting a man joint residence of a five year old boy (and therefore parental responsibility), despite the man not being the child's natural father. Until the parents separated when the boy was two, the man believed him to be his own child, and brought him up as such. In dismissing the mother's appeal against the county court order, Sir Mark Potter stated that the man "had played a full part in the boy's early life and had a "genuine and legitimate ambition" to continue to play a father's role".

The Telegraph report says that: "The ruling means that the child now effectively has two fathers and that the person who raised him, referred to only as Mr A, has the same rights as the boy's biological parent." I'm not sure about this, as the report doesn't explain whether the natural father has parental responsibility - if he does not, then he does not have the same rights.

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Update: The full report of this case, Re A (A Child: Joint Residence/Parental Responsibility) [2008] EWCA Civ 867 can now be found here. The report confirms that the boy's natural father "wished to play no significant part in [his] life". I think that what may have confused the Telegraph reporter into thinking that there was no limit to the number of parents that a child can have was Sir Mark Potter's confirmation that under the Children Act there is no limit upon the number of persons who may have parental responsibility for the same child at the same time.

Wednesday, July 30, 2008

Bush v Bush: Brussels II and all that

The thorny and increasingly important issue of jurisdiction went before the Court of Appeal earlier this month in Bush v Bush [2008] EWCA Civ 865.

The Facts:
The parties were married in London in April 1988 and went to live in Tanzania in 1991 or 1992. Three children, now aged 14, 11 and 9, were born in England and are British citizens, although they have never been resident in the UK. Between 2002 and 2003 the family lived in Marbella, Spain. In August 2003 the mother and the children returned to live in Tanzania before returning to Spain in September 2006. The parents were living separately by February 2007, and the two older children now live with the father. The youngest child is based with the mother, but spends an 'appreciable amount of time' with the father. In July 2007 the mother commenced divorce proceedings in England, on the basis that both parties were domiciled here. It appears that in her Statement of Arrangements she indicated that she wanted to relocate the children in England. The father indicated in his Acknowledgement that he was unsure if the mother was domiciled in England, but did not dispute it. In August 2007 the father began court proceedings in Marbella, for care and custody, maintenance and an order that the children should not be removed from Spain. The mother applied for a stay of the Spanish proceedings, on the basis that a related action was in progress in the courts of England and Wales. The stay was granted by the Spanish court in February 2008. The mother then began proceedings in this country for residence orders and the father sought a declaration under Article 17 of the Brussels II bis Regulation that the English courts have no jurisdiction over the case. The application was dismissed by Mrs Justice Pauffley on 15 April 2008. The father appealed.

The decision: At first sight, the ruling of Mrs Justice Pauffley seems quite reasonable. There were already divorce proceedings continuing in the English court, the father had not disputed the issue of domicile, and the Spanish court had put a stay on the Spanish proceedings. However, their Lordships in the Court of Appeal disagreed. In his leading judgment Lord Justice Thorpe stated:

"I would unhesitatingly conclude that the Marbella court was the more appropriate court having regard to the best interests of the children. First an application to relocate is properly determined by the court of the child's habitual residence which is being asked to sanction the relocation rather than the court of the jurisdiction to which the primary carer seeks to move. I can understand that the mother might think that she would be more likely to persuade a London judge of the benefits of the move to English residence and education but the Spanish judge should take that decision having at her reach all the evidence as to the well settled history and as to the children's achievements in their current environment. It would in my opinion create a most unhelpful precedent if a court exercising divorce jurisdiction, exceptionally and transiently seised with jurisdiction in matters relating to parental responsibility, were to issue an order permitting a parent to leave the jurisdiction of the child's habitual residence without any involvement of the courts of the children's long settled residence."

Technically, the point was that Article 12(1) (b) of the Brussels II bis Regulation speaks of the jurisdiction being "accepted expressly or otherwise in an unequivocal manner … at the time the court is seised", and the court first seised in any matter relating to parental responsibility was the court in Marbella, when the father issued his application there.

Commentary: I agree entirely with their Lordships. These children lived in Spain - that is their home, and that therefore is where any decision as to arrangements for them should be made. It is true that one can argue that the English court became seised of the matter when the divorce proceedings were issued but, as Lord Justice Thorpe pointed out, the English court was only "transiently seised" with jurisdiction in matters relating to parental responsibility as an adjunct to the divorce proceedings - the real jurisdiction in that area lay with the Spanish court.

For a summary of Brussels II bis, see this article by David Hodson.

Spaced out

Today I have been getting spaced out watching the video of Radiohead's House of Cards. For those who don't know, the video was made using '3D plotting technologies', rather than cameras and lights. For more information on the technique used, see here, and for the full 3D experience, have a look at the viewer, where you can manipulate the images. Cool or what? Here's the video:

The long arm of the law

The BBC reports today a case of an English lecturer at the University of Kent who is apparently being held in jail in Sao Paulo, Brazil, on suspicion of not paying child support. Martin Boyle had travelled to the city to try to see his 16-year-old daughter, who lives with his Brazilian former wife. He is believed to owe 6,000 Brazilian Real (about £2,500) in child support payments, although his family and friends think that the failure to pay was an oversight on his part. Whatever the truth, this is a useful reminder of the 'long arm of the law', when it comes to maintenance. In fact, the mother could have pursued the maintenance claim in this country, and if successful an order would have been made by Mr Boyle's local Magistrates' Court, requiring him to make payment to that court.

Sobering reading

Nicely following my post yesterday, the Government Equalities Office has published a domestic violence factsheet (PDF), which makes pretty sobering reading. Amongst the 'key facts' it lists are that one in four women will experience domestic violence in their lifetime, that 85% of victims of domestic violence are women and that women are the victims in 4 out of 5 domestic homicides. The factsheet also includes a 'domestic homicide map of England and Wales' showing the number of women murdered by their partners or former partners over the last five years for which statistics are available (see picture - the darker the area, the higher the incidence). The highest incidence of all was recorded by Humberside police force, with 3.27 out of every 100,000 women reported as killed by a current or former partner between 2002 and 2007. The numbers are probably not statistically significant, but I would suggest that the map may show a correlation between domestic homicides and standard of living, although, as the Guardian points out, the map also shows that domestic violence is everywhere.

[Thanks for the link to this story go to Current Awareness - who else?]

Tuesday, July 29, 2008

Proposed changes in murder laws

The government has announced proposals to change the law on murder, including a new defence for people who kill after suffering domestic abuse. In exceptional cases, defendants who successfully claim that they were "seriously wronged" by the "words and conduct" of the victim could now be convicted of manslaughter, rather than murder. Long-term domestic abuse sufferers will also be able to use a partial defence of "fear of serious violence". The proposals face public consultation before new legislation is introduced.

Not being a criminal lawyer, I can't comment on the proposals. They seem to be generally welcomed, although I noted that Erin Pizzey, founder of the first refuge for battered wives in 1971, indicated on the BBC's Breakfast Programme this morning that she felt the changes were unnecessary, as she said that most women who kill their abusers do not go to prison under the present law.

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Update: The consultation paper can be found on the Ministry of Justice website, in PDF form, here. (Thanks Current Awareness.)

Sunday, July 27, 2008

With this chainsaw I thee divorce...

"We got the impression that he didn’t want to leave", said Katherine Singleton, of estate agents Dudley Singleton & Daughter, referring to a husband in Pangbourne, Berkshire, who was so traumatised by having to leave his Victorian cottage that he took a chain saw to the joists, sawing through every stair and floorboard, poured cement into the septic tank, took out the kitchen sink and taps, and smashed the bath and toilet. Yes, I can see why they got that impression.

This little snippet of spousal retribution comes from a serious article in The Sunday Times today discussing the correlation between the strength of the housing market and the number of marriage breakdowns, the suggestion being that there are fewer divorces when the housing market is slow. There does seem to be an increasing amount of anecdotal evidence that couples are having to stay together as they are unable to sell the matrimonial home. This can obviously cause considerable unhappiness and distress although, as the article points out, sometimes it can actually save a marriage. The article goes on to suggest that the effect of the housing market on divorces is now more obvious, with more people divorcing later in life when they are more likely to own a valuable family home.

Of course, as the husband in Pangbourne demonstrates, not everyone wants to sell their home.

Saturday, July 26, 2008

Podcast: Children Law: An Introduction

For my second podcast I've done a brief introduction to children law. Note that the podcast only deals with private law children matters.

Children Law: An Introduction

Friday, July 25, 2008

Newsbites

I thought I would catch up on some of the stories that I haven't had time to post about over the last couple of days.

First up, a story that appeared in the Daily Mail, regarding a report from the Institute for Public Policy Research that suggests that the divorce reforms of the 1960s that made divorce much easier have resulted in more elderly people living alone and suffering from depression. Interesting how the social effects of those reforms are still being felt today - see also this post.

Next, a story that I found via The Magistrate's Blog. Random Acts Of Reality, a blog written by a member of the London Ambulance Service, has a thought-provoking post about a call he responded to where he had a serious suspicion that the injuries sustained by a young woman were inflicted by her husband. Reminds us how many victims of domestic violence suffer in silence.

One of the great things about blogging is being part of a community, promoting each other and passing information between ourselves. The last story came to me via a number of routes, including the prolific John Hirst of Jailhouselawyer's Blog and infobunny on Twitter. It concerns the absurd case in New Zealand of a nine-year-old girl whose parents had thought it was a good idea to name her 'Talula Does the Hula From Hawaii'. Unsurprisingly, the girl was embarrassed about her name and was made a ward of court so that it could be changed. Judge Rob Murfitt criticised parents who give their children strange names, and stated that registration officials had blocked such names as 'Sex Fruit', 'Keenan Got Lucy' and 'Yeah Detroit', but bizarrely had allowed 'Number 16 Bus Shelter', 'Violence' and 'Midnight Chardonnay'.

Thursday, July 24, 2008

Podcast: Divorce: An Introduction

As an experiment, I've created a podcast which may, or may not, be the first of many. This podcast contains a very brief and basic introduction to the law and procedure on divorce, and will I hope be of interest to lay people and non-divorce lawyers:

Divorce: An Introduction

Pre-nups: To advise or not?

Would it be negligent not to advise clients about pre-nuptial agreements, as suggested by District Judge Duncan Adam in the article he wrote for the Law Society Gazette last week? He argued that the decision in Crossley v Crossley [2007] EWCA Civ 1491 has 'flagged up' "the potential for negligence claims, where clients are not advised about pre-nuptial agreements".

A letter in this weeks Gazette questions the District Judge's proposition. Iain Harris, co-author of Pre-nuptial Agreements: A Practical Guide, disagrees with the District Judge entirely. He considers that the the statement by Mrs Justice Baron in NA v MA [2006] EWHC 2900 (to which the District Judge referred) that ‘agreements between spouses were considered void for public policy reasons (but this) is no longer the case’ is not correct, and that the law remains that the parties cannot validly make an agreement either not to invoke the jurisdiction of the court order or to control the powers of the court when its jurisdiction is invoked (Hyman v Hyman [1929] AC 601). In the circumstances he believes that, rather than it being negligent not to advise on a prenuptial agreement, "the contrary statement would be a safer proposition, namely that for a solicitor to advise that a prenuptial agreement will be given effect is almost certainly negligent".

So, that leaves the difficulty of how we should advise clients. Thankfully, the problem may not arise, as Penny Raby of Penny Raby & Co. in Pershore makes the valid point in another letter that we are not usually given the opportunity to advise clients prior to marriage, as they don't come to see us.

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Previous posts on Crossley:

Prenups: Has their time arrived?

Money Before Love

Crossley: Prenuptials enforceable?

Crossley: support for pre-nups

Wednesday, July 23, 2008

Therapeutic reading

I don't normally advise upon the emotional side of divorce and relationship breakdown - I don't consider myself qualified to do so - but I thought I would recommend something that I have just come across: Elizabeth Buchan's top 10 books to comfort and console during a divorce, which appeared in the Guardian in 2006. I can attest that reading a good book can be extremely therapeutic, and I'm sure that reading something appropriate can give comfort and consolation during or after the ending of a relationship.

As to Buchan's choices, I can only comment on the one book that I have read: the very last in the list, Persuasion, by Jane Austen. I remember studying it at A-level, and just not 'getting' it - something I think that often occurs when one is forced to study something. However, I have since grown to love it, and I'm sure Anne's story can be an inspiration to those facing an uncertain future. If you don't have the novel, you can even read it free online here, and if you would prefer to watch rather than read, I recommend the 1995 BBC adaptation.

Tuesday, July 22, 2008

A small victory

The Times reports today a small victory in its on-going campaign against what it considers to be 'secrecy' in the family courts: "Details of private family court proceedings that led to a mother fleeing the country with her son after he was placed in foster care have been disclosed after legal action by The Times." Having read the report, I'm not sure what has been achieved by this victory, but no doubt The Times is satisfied.

* * * * *

Previous related posts:

Court 'secrecy': New proposals for reform
Secretive, or Private?

[Another hat-tip to Current Awareness for the link to this story.]

* * * * *

Update: A full report of the case can now be found here.

Judge breaches restraining order

Further to this post back in February, the Telegraph reported yesterday that barrister and (former) Crown Court Recorder Lincoln Crawford "has been sentenced to 50 hours community service after he admitted breaching a restraining order imposed following a campaign of harassment against his ex-wife and her boyfriend". The order was originally imposed after Crawford had allegedly followed his ex-wife and boyfriend, and spied on them. Crawford pleaded guilty to one count of breaching the order in July 2007, and four similar counts were left to lie on the file. No physical violence was involved, but no doubt this story will be picked up with glee by those sections of the media which are always happy to see members of this profession in trouble with the law.

[Hat-tip to Current Awareness for the link to this story.]

Walsh-Smith: "Calculated and callous"

Well, it didn't do her any good. Tricia Walsh-Smith, of 'YouTube divorce' fame (infamy?) has lost her case. Not only did the court grant her husband the divorce, but it also ordered her to leave the New York apartment within a month (something that she railed against in the videos) and rejected her claim that the prenuptial agreement should be voided. Judge Harold Beeler found that Walsh-Smith had engaged in a "calculated and callous campaign to embarrass and humiliate her husband and his daughters".

Walsh-Smith has said that she has no regrets and indicated that she intends to appeal, but hopefully the judgment will deter others from emulating her.

* * * * * *

Previous posts on the 'YouTube divorce':

What shall I post today?
She won't go away...
I've Started So I'll Finish
More Dirty Linen
Dirty Linen

Monday, July 21, 2008

Remove the Shield

I'm pleased to see that Islington Council has launched an appeal against the judgment that it has bullied and discriminated against Registrar Lilian Ladele, which I reported in this post. Let us hope that reason prevails and the appeal succeeds.

Meanwhile, the Telegraph reports a similar case of a "Christian policeman" taking action against Norfolk Police for alleged harassment over his religious objection to homosexuality. He was disciplined by the force after objecting to emails sent to officers encouraging them to wear a pink ribbon on their uniforms during Gay History Month. He believes the force are biased against him because he holds a faith, whereas the force say that they "will not tolerate any form of homophobic behaviour".

The answer is clear: religious beliefs must not trump the law of the land. If a homophobe was not religious then the law would not hesitate to act against them, so why should religion provide a shield against the law?

Sunday, July 20, 2008

Divorce in haste...

Two linked stories in the news:

Reuters reported that in India a man obtained a divorce by taking a woman to court who impersonated his wife. They both told the court that they wanted a mutual divorce, which the court duly granted. Unfortunately for the somewhat optimistic man, his real wife actually objected to all this when she was asked to leave the marital home. She then appealed against the divorce, which has been suspended. I also understand that the husband may face criminal charges.

At this point I was going to debate whether something similar could happen in this country, but then I came across this story, which confirms that, of course, it could. The report is a little sketchy and unclear, but it seems that Ronald Nelson had his marriage either dissolved or annulled by the North Shields County Court without his wife's knowledge, after he gave evidence to the court, presumably including false evidence regarding her being served with the proceedings. Inevitably, his wife found out when she commenced divorce proceedings herself and Mr Nelson was subsequently convicted of perjury.

I particularly liked the quote from Detective Constable Dave Kernaghan of North Shields CID: "attempt to divorce in haste and repent at leisure". Quite.

Friday, July 18, 2008

Zeiderman: Showing the system in a bad light

It is a common scenario in ancillary relief (financial/property claims on divorce) applications that one party alleges that the other has failed to properly disclose their assets. How does the court deal with this? Well, not as it did in the case of Zeiderman v Zeiderman, which Lord Justice Wall said "does not show the family justice system in a particularly good light".

On the 7th June 2006 District Judge Segal, sitting in the Principal Registry, ordered that Mr Zeiderman transfer the former matrimonial home to Mrs Zeiderman and that he pay her maintenance at the rate of £20,000 a year. According to Mr Zeiderman, the former matrimonial home was the only substantial capital asset of the parties, and £20,000 represented approximately 50% of his net income. The district judge made this order because he did not accept Mr Zeiderman's evidence, in particular that he was not to receive a half share of a property which had previously belonged to his parents and that he had not disclosed his true income, as Mrs Zeiderman alleged.

Mr Zeiderman appealed against the order, and his appeal initially went before Mrs Justice Black in the High Court. She dismissed the appeal and refused to allow Mr Zeiderman to adduce additional evidence. The matter then eventually went before the Court of Appeal, in June this year. There, Lord Justice Wall criticised the approach of District Judge Segal in accepting Mrs Zeiderman's position without a full investigation of the evidence. In the circumstances, he felt that the district judge had "made an inappropriate order in relation to both income and capital". He therefore set aside the district judge's order, and directed a re-hearing.

In his judgment, Lord Justice Wall made it quite clear at the outset that this case turned "exclusively on its highly unusual facts" and that it was "not a precedent for anything nor should it be treated by the profession as such". Nevertheless, it is, I would suggest, of interest not just as an example of things going wrong but also for stating clearly that judges, whilst being entitled to form a view as to the credibility of witnesses, should, where essential facts are in issue, make orders on the basis of evidence rather than "on the basis of an assumption and a belief".

The truth about Dean v Dean

The Times reports an interesting development today: "When a prominent businessman and friend of the stars divorced the mother of his four children, local gossips said that the mean old skinflint had fleeced her to pursue his champagne lifestyle. Fed up with the malicious rumours, Gary Dean decided that the only way to silence his critics was to post the details of his wife’s £3.7 million settlement on the internet". After taking legal advice, Dean purchased the domain name deandivorce.com and posted details of the divorce settlement there last week - see the picture. It seems to have worked: Dean claims that the gossips were silenced when they learned the size of the settlement.

I'm not sure what Mrs Dean thinks of all this - she is refusing to comment - but as a matter of law, there is nothing to prevent publication of divorce settlements, unless the court orders otherwise.

Thursday, July 17, 2008

Court 'secrecy': New proposals for reform

Thanks again to John Hirst of Jailhouselawyer's Blog for drawing my attention to Camilla Cavendish's article in The Times today, detailing the responses to the series of articles on family justice that appeared in the paper last week, and that I summarised here. As one would expect, most of the responses seem to support the paper's call for an end to 'secrecy' in the family courts, and Cavendish doesn't accept what criticisms there have been. Most importantly, perhaps, she reports that Bridget Prentice, the Justice Minister, has announced that the Government will publish new proposals for reform this autumn. We will see whether the proposals will be sufficient to silence the media clamour.

FamilyLore Game

On a recent check of Family Lore's Google rankings I came across this, the FamilyLore Game. Now, the game has nothing whatsoever to do with this blog, it is based upon family history. To quote from the website: "The FamilyLore Board Game is a fun way for family members and friends to learn about their family history, genealogy, ancestors, and tradition".

Having made the above disclaimer, I got to thinking about what a game that was based upon this blog would be like. I imagined a Monopoly-style board, with squares for Relate, solicitors, mediators, estate agents, courts and all the other fun places those going through divorce have to visit. And of course, there would be Chance squares, with cards saying such things as "You have been awarded a lump sum, collect £500 from the other player", or how about: "You have been found guilty of domestic violence, go directly to jail and do not pass within 100 yards of the matrimonial home." Hmm, I could be on to a winner here - expect it in stores in time for xmas.

Wednesday, July 16, 2008

Welcome to the Oracle

I know it's not long since I last did one of these keyword question-and-answer sessions, but on a quiet news day I thought it would be a good idea. Besides, I enjoy doing them. As always, my disclaimer in the sidebar applies to what follows. Incidentally, if anyone disagrees with any of my answers, do let me know.

do i lose ancillary rights to obtain my decree absolute

No, but you may, for example, lose rights under your spouse's pension, until such time as a pension sharing order has been made. It is always safest to wait until financial/property matters have been finalised before applying for the decree absolute.

i am getting divorced how do i hide my assets

You don't. Any settlement can be overturned if full disclosure of assets has not been made.

how to calculate spousal maintenance

There is no formula. It depends upon the needs of the receiving spouse, and the means of the paying spouse.

how much child maintance should i pay

See the child support calculator.

cohabitees rights to lottery winnings

Probably none, unless the cohabitee had an interest in the lottery ticket - take some advice to check. One cohabitee has no right to the property of the other.

2008 contact information of england chief justice lord phillips

I suggest you try to contact him via the contact page on the Judiciary's website.

at what age can i stop child maintenance payments

A complicated one, because it depends upon whether the maintenance is just agreed, pursuant to a court order, or via the Child Support Agency. If an agreement is in writing or there is an order, check the wording. If it is via the CSA, it basically lasts until the child finishes full-time education or reaches 19, whichever occurs first.

form a - for dismissal purposes in divorce

Often a cause of confusion, the Form A for dismissal purposes is required when applying for a consent court order, giving effect to a financial/property settlement. It sets out all possible financial claims by that party, so that the court can dismiss the claims when it makes the order.

can husband has residence order

Yes. Contrary to popular belief, the law does not differentiate between mothers and fathers. If the husband is not the child's father, he can still apply for a residence order.

litigant-in-person strategy conduct of solicitor

It only applies to Resolution members, but have a look at their Guide To Good Practice on Dealing With Litigants In Person (pdf), which indicates how solicitors should conduct themselves.

spousal maintenance bankruptcy

If the question is whether a bankrupt should still pay spousal maintenance, the answer is yes, if required to do so under a court order.

why a consent order is refused

It is a popular misconception that where the parties agree a financial/property settlement, the court will automatically make an order in the agreed terms. It will not - the court will only make the order if satisfied that the terms are broadly reasonable.

being named in divorce procedures

Presumably as a co-respondent in an adultery divorce. You will be served with the divorce papers, and will have an opportunity to say whether or not you admit the alleged adultery, and whether you agree to pay any costs claimed by the petitioner.

50/50 split of assets if we'are not married?

There is no such rule, and cohabitees do not yet have any right to make a claim against their (former) partners. Accordingly, they are essentially only entitled to a share of any assets in which they can show they have a legal interest. This is a complex area, and advice should be sought.

borderline personality disorder causing divorce

I could be flippant here, but I won't. The fact that the respondent's behaviour is the result of illness or disorder does not necessarily prevent it from amounting to unreasonable behaviour for the purpose of divorce proceedings.

reconciliation after decree nisi

You can apply to set aside the decree nisi.

non resident parent remarries child maintenance

This could affect the amount of child maintenance, if the NRP moves to a new household, and there are other dependent children in that household.

what happens to a consent order when one party dies

It depends upon when they die. If before the order is made, the proceedings are abated and the order cannot be made. If shortly after the order is made then that could invalidate the order. If longer after the order is made (say, one year or more), then the order will probably stand.

after decree nisi can the court order the forced sale of the matrimonial property

Yes, an order for sale can be made if the court has made a lump sum or property adjustment order.

Lastly:

getting even law

There isn't one. And if your reason for using the law is to get even, forget it.

and:

criteria of a family lawyer

Well, they have to be good looking, suave, clever and, above all, modest!

Tuesday, July 15, 2008

So much for reducing waiting times...

Further to this post, I have today heard from CAFCASS that they have allocated the report in the case to which I referred to Greenfinch Charitable Trust. According to their website, the trust "was established in 1991, to develop and provide a wide range of services within the statutory childcare sector, from Supervised and Supported Contact through to Multi-Disciplinary Assessment". CAFCASS assure the court that the report "will be prepared according to Cafcass standards". We shall see.

CAFCASS state that they are outsourcing the report "in order to reduce the waiting times for all our service users and the Courts", yet they go on to ask the Court to consider an extension to the current filing date, "as Greenfinch would be in difficulties conducting their enquiries and completing their report before 2nd October 2008". The report was ordered on the 7th May.

Monday, July 14, 2008

Living Together Campaign

Thanks to Judith Middleton for pointing out Resolution's new 'Living Together' campaign, in association with Lord Lester's Odysseus Trust, aimed at ending "the injustice and financial hardship faced by thousands of cohabiting couples, carers and siblings who live together". As part of the campaign, a Bill will be introduced in the Autumn to give rights to couples who live together. I'm not sure whether the purpose of this is actually to get the Bill passed into law, or simply to 'kick-start' the Government into acting on the Law Commission’s proposals for the introduction of legal protection for cohabitees (see this post). Either way, I fully support it - it's about time the law caught up with society and gave proper legal protection to cohabitees.

Sunday, July 13, 2008

For Richer or Poorer

"Personally, I think all wives of high-earning husbands should consult their divorce lawyers," said Muhammad, "after all, they must protect their interests."

"But that's appalling," I replied, "what about love, loyalty, for richer or poorer and all that?"

Muhammad sniggered. "Get real, how many pairs of Gucci shoes can you buy with love?"

"Hmm, that's true," I admitted, "but I still think it's terrible to put money before everything."

"If these poor women don't look after their interests, they may have to start shopping in John Lewis, or even Marks and Spencer."

"Marks and Spencer? But that's where I get all my clothes!"

"Exactly. And worse than that, they may even have to work for a living!"

There was a certain glint in Muhammad's green eyes. I began to suspect that he was being sarcastic. "You don't really mean that?" I asked.

Muhammad smiled. "Look," he said, "you're a divorce lawyer, right?"

"Right."

"And times are hard, right?"

"Right."

"So, you could do with some extra business, right?"

The penny dropped. "You're right!" I exclaimed. "I agree - these poor women should get some advice!"

Saturday, July 12, 2008

Secretive, or Private?

Thanks to John Hirst of Jailhouselawyer's Blog for pointing out a series of articles on family justice that appeared in The Times over the past week. The first four articles are written by Times columnist Camilla Cavendish and the fifth, a response, is written by President of the Family Division Sir Mark Potter. I'll deal with each article in turn:

The first article talks of the 'secret state that steals our children' and suggests that privacy rules designed to protect the children are actually being used to protect the experts and professionals involved in the family justice system by making them unaccountable. The article concludes with a call for the government to take action to rectify the problem.

The second article goes into more detail about how family courts operate in secrecy, with particular reference to the lack of accountability of social workers and experts such as psychiatrists and paediatricians.

The third article looks at 'the pernicious types of allegation that are almost impossible for parents to disprove', such as "emotional abuse".

In the fourth article Cavendish sets out a 'ten-point plan to make our courts system fairer', with such ideas as opening family courts to the press in all but exceptional circumstances, removing the restrictions that prevent families from talking about their case, providing an automatic right for parents to receive copies of case conference notes and all evidence used against them in court and creating an independent body to oversee the actions of social services.

In the final article Sir Mark Potter defends the system, claiming that it is private, rather than secretive. He admits that it is far from perfect, and is in 'broad (but qualified) agreement' with much of Cavendish's ten-point plan. However, he says, "the vision of a secretive system that removes children from families without good reason is an inaccurate and unfair reflection of the work of the family courts in England and Wales". He claims that "the vast majority of parents and children in care cases want privacy, rather than the “washing of dirty linen” and the exploring of deeply emotional and personal issues in public", and he therefore supports the view of the Government "that a better balance would be struck by publicising the judgments in all final hearings that result in the removal of children from their parents, with the parties remaining anonymous to protect the identity of the child". He does not see how miscarriages of justice "would have been avoided by the presence of the press when the evidence was given", and I agree with him there.

Friday, July 11, 2008

Mammon Before Love

"Desperate wives turn to divorce experts" says the headline to this report in the Financial Times today. Apparently, slumping city bonuses due to the credit crunch are driving wives of city high earners to take legal advice upon how to protect their own interests. The findings come from research commissioned by Mishcon de Reya partner Sandra Davis, which indicates that a fifth of all city high earners know a colleague who has been served with divorce proceedings since the downturn started. One in ten are worried that their spouse may be taking legal advice, with most concern amongst those who have been married between three and seven years (Ms Davis speculates that "either the honeymoon period lasts for up to three years or new wives have had less time to get used to the high life").

If all of this seems terribly mercenary on the part of city wives, their husbands are no better, with nearly 40% admitting that, in any event, they don't give any of their annual bonuses to their wives.

Thursday, July 10, 2008

Infertile man forced to pay for child he claims isn't his

This story, also from the Telegraph, and also found via Current Awareness, is interesting but doesn't really include sufficient information for me to comment upon in detail. The man claims to have been sterile since 1986 but has been forced by the Child Support Agency to pay more than £8000 child support for a child conceived by his wife in 1992. He apparently obtained a DNA test confirming that he was not the father, but the response of the CSA indicates that it was not carried out by an approved company. If so, common sense would suggest that he be given the opportunity to have the test carried out by an approved company, but then common sense doesn't always apply when dealing with the CSA.

Excuse for Homophobia

In a victory for homophobic religious bigotry, the registrar I mentioned in this post has won her case against her employer, Islington Council. Registrar Lillian Ladele refused to conduct civil partnership ceremonies as she said that they "went against her Christian faith". The tribunal ruled that she was discriminated against on the grounds of religious belief, and was harassed. Right, I'm off to create a religious cult opposed to doing the bits of my job I don't like...

[Thanks to Current Awareness for the link to the BBC report.]

Worrying Implications

The Telegraph yesterday reported upon a case that could have worrying implications for divorce lawyers. Carol Williams received a divorce settlement of £1.4 million in 2000, but believes that if she had waited until after the landmark case of White v White she would have received a settlement of nearly £3 million. She claims that her solicitors, Thompson Leatherdale, as well as her then barrister, Nicholas Francis QC, were negligent in failing to advise her about the impending change of the law and put a stop to her settlement. Both solicitors and barrister deny any liability.

I'll save any comment on this one until the case is concluded.

Wednesday, July 09, 2008

Oops

"A happily married couple were stunned to receive a solicitor's letter saying their divorce had been finalised," says this report in Ananova. The letter had been mistakenly sent by Best Solicitors of Sheffield to a former client of theirs, they having somehow managed to put the wrong names on the template. Oh well, I suppose it could happen to the best of us...

Best's mission statement includes the following: "Our organisation is client driven and our clients are very important to us. Therefore, we aim to be outrageously good in what we are trying to achieve, and not satisfied with being just good." Hmm...

1958: A good year to be born

The Telegraph reports today upon the finding of the National Child Development Study that divorce remains just as damaging to children, despite being more common and socially acceptable. The Study has tracked around 17,000 people born in Britain during one week in 1958, over the course of their lives, and researchers have compared their findings with those of people born in 1970. The results indicate that when they reached their early 30s, the children of divorced parents in both groups were equally likely to lack qualifications, be on benefits and suffer from depression.

Having been born in 1958 myself, I take a particular interest in these findings. I certainly recall that it was a rarity for the parents of my contemporaries to have separated or divorced, in fact I don't remember coming across this until I was at grammar school in the 1970s. One would certainly have thought that the stigma that was then attached to divorce would have had an adverse effect upon children of my generation, but the Study suggests that this was not so - they did no worse than children of later generations. The question then arises: were many of the children of my generation adversely affected by their parents staying together after their marriages had broken down? If not, then that raises a question about the effect upon children of the divorce reforms of the 1960s, not that I think that there is any going back to the old days.

They're at it again...

Two Fathers 4 Justice protesters are again protesting on the roof of Labour Party deputy leader Harriet Harman's home. Sorry, but I don't agree with this, no matter what the cause. Such repeated protests say to me: "we'll continue to harass you at your home until we get our way". Hopefully, such blackmail bullying will be detrimental to their cause, although I have my doubts - we do, after all, live in a society where he who shouts loudest gets his own way.

Tuesday, July 08, 2008

Stick or Twist?

With it now seeming increasingly likely that we are headed for a recession, the question for divorce lawyers is: what effect will this have on business? It seems to me that there are two schools of thought: that economic strains on families will cause more marriage breakdowns, or that couples will stay together as they can't afford to separate.

It is certainly the case that financial strains can be a serious contributory factor to marriage breakdown. Large debts are a regular feature of cases I deal with, with one spouse complaining at the frivolous spending of the other, and with money getting tighter and stories of people using credit cards to make mortgage payments, debt will undoubtedly become an even more serious problem. A common scenario seems to be couples who try to spend their way to happiness, perhaps knowing that there are difficulties in the marriage, only to add the spectre of debt to those difficulties.

But will they be able to afford to separate? Housing, of course, is the biggest issue, and with house prices dropping by some 4.4% over the last year, it is easy to see that there will be less equity to divide between the spouses. Add to that the difficulty in obtaining a mortgage and it becomes understandable that some couples may choose to stay together rather than risk the uncertainty of life apart. There is already anecdotal evidence that this is happening.

Then there is the question of paying for the divorce itself. It seems to me that those wanting a divorce fit roughly into one of three financial categories: those whose income is low enough for them to be eligible for legal aid, those whose income is high enough for money not to be a serious problem (although they may have to suffer a reduction in their living standards), and everyone else. Those in the first two categories may still be able to afford to get divorced (although those on legal aid may certainly not be able to afford to rehouse themselves), and those stuck in the middle may find the cost of divorce beyond them. These are the people who will be looking for cheaper alternatives, such as Divorce-Online, that I mentioned recently.

Whether couples choose to stick together or separate, these are clearly worrying times for the profession.

Monday, July 07, 2008

Help with research for Channel 4

I recently received this email from a researcher on behalf of Channel 4:

"I am wondering if, in your years as a divorce lawyer and divorce muser, you might be able to suggest how I could find one or two couples in the process of divorce to talk to me. It's a tall order - for a start they need to have separated or divorced within 12-18 months of marriage and, secondly, which is the hardest part, in order for them both to be willing to speak to me, they'd really have to be speaking to each other!...The interview would be recorded on camera, though not broadcast - only I and Channel 4 would see it. And the aim of the interview is to try and ascertain what are the reasons behind marriages breaking down early."

If you think you can help, email me at john[at]familylore.co.uk, and I will forward your email on.

Sunday, July 06, 2008

Sunday Stories

Three stories that caught my eye this morning:

The first is yet another warning of the realities of sharia law, particularly apposite after the comments of Lord Phillips this week. Reuters reports that: "a Saudi appeals court is due this week to review the case of a biochemist and his female student sentenced to jail and flogging after a lower court ruled their research contact was a front for a telephone affair. The man was sentenced to 8 months in prison and 600 lashes and his student to 4 months in prison and 350 lashes last November for establishing a phone relationship that led her to divorce her husband." All sounds perfectly reasonable to me, at least until the oil runs out...

On a lighter note, there's a delightful potted history of divorce in New York in the Daily News. I particularly liked the part about the 'young ladies' who made a living posing as the 'other woman' so that husbands who had not actually committed adultery could get a divorce, adultery being the only ground for divorce in New York prior to 1966. One such lady, Sara Ellis, "confessed to posing as the other woman in 35 divorce cases in 18 months, earning $8 to $10 per divorce action".

Lastly, a story that proves that amor really does vincit omnia. In Montclair, Virginia, Ted and Wanda Conner remarried after 30 years apart. They were originally married in 1945, but after about 30 years together they separated and divorced after Ted met someone else. In fact, Ted married three other women over the next 30 years, before getting back together with Wanda and remarrying her last month. Ted sounds like a dream client for his divorce lawyer - let's hope he won't be troubling them again.

Friday, July 04, 2008

It's that time again...

It's that time again. I thought I would go through some of the search terms that have recently found their way to Family Lore. As usual, my disclaimer (in the sidebar) applies to what follows.

uk decree nisi living with partner

Living with a partner does not affect the decree nisi, but could affect the financial/property settlement - see below.

can going bankrupt clear csa arrears

Nice try, but no. Child support is still payable at the end of the bankruptcy.

when is it too late to change solicitors during a divorce

It's never too late, although pretty pointless if the divorce is almost complete. The one thing I would say is: if there is a hearing coming up then give your new solicitors plenty of notice, so that they can properly prepare.

how to calculate spousal maintenance

There is no formula to calculate spousal maintenance. It is usually calculated on the basis of the receiving spouse's needs, and the paying spouse's available income.

lie detector family law court

Never heard of one being used, and can't think of a circumstance when it would.

gifts in cohabitation

They are exactly that - gifts, i.e. the ownership of the item passes to the recipient of the gift.

effect adultery settlement

Adultery per se has no bearing on a financial/property settlement, but if one party is cohabiting then that could have a bearing.

no matter how good she may look now

What, she's kept her looks but you still want to divorce her?

this goes against stack v dowden

What does?

can cafcass talk to my daughter without a court order

I am assuming that a CAFCASS report has been ordered, hence their involvement. If so, they can talk to your daughter without requiring a specific order to do so.

if you remarry can an ex wife still make a financial order on me

Yes. Your remarriage would not prevent her from pursuing a claim. A claim is only prevented by the remarriage of the claimant.

blame in marriage

Not sure what the searcher was after here. Unfortunately, we still have a fault-based divorce system in this country, at least unless the parties have been separated for two years.

false perjury domestic violence injunction proceedings

I would say this is pretty common, with applicants for injunctions exaggerating or falsifying allegations in order to get the injunction. Unfortunately, it is usually difficult to prove, as there are rarely any witnesses to the alleged incidents.

promulgated court order family courts

I presume this is referring to the issue of transparency in family courts, and publication of judgments. Mr Justice Ryder recently suggested that judgments should be given in public and anonymised where necessary.

marilyn stowe and madonna

She was recently compared to Celine Dion, but I'm not sure about a Madonna connection - unless she's received instructions from her?

liability order by csa moving assets in relatives name

I've a better suggestion - pay what you owe. You're not the same person that's considering bankruptcy are you?

should i apply for child maintenance he's 17

Presumably, he's still in full-time education. You will need to apply to the Child Support Agency.

one night stand liability for child maintenance

It makes no difference: if you're the father, you're still liable.

Lastly:

marriage is like a game of football


It is? Well, I suppose you're more likely to lose if you play away from home...

Sharia: Lord Phillips Weighs In

As has been widely reported, Lord Phillips, the Lord Chief Justice, has weighed in to the argument over the relationship between sharia law and English law. I suspect that there may be some misconceptions about what he said, so to clarify, he made it clear that there was no place for sharia courts in this country and insisted that all residents were governed by the laws of England and Wales. What he did say was that there was no reason why sharia law's principles could not be used in mediation.

What do I think of this? Well, from the point of view of reason it is, of course, extremely sad that, in the twenty-first century, so many people still cling to stone-age delusions of supernatural beings. However, from a legal point of view I don't necessarily have any objection to 'sharia mediation' provided that both parties are free to choose this route and, as with other forms of mediated settlements, they are subject to the approval of the English courts - i.e. the settlement is not final and binding until incorporated into a court order, which will only be made if the settlement is in accordance with the principles of English law.

Thursday, July 03, 2008

The Prerequisite for Divorce

As this story reminds us, if there's one thing you need before getting a divorce, it's to be married in the first place. I remember a long time ago being instructed by an client who told me that she had undergone a marriage ceremony in a remote Indian village many years previously. She and her 'husband' had subsequently moved to this country, the 'marriage' had broken down, and now she wanted a divorce. After investigation, I came to the conclusion that it wasn't a valid marriage and had to inform the client, much to her horror, that she couldn't have a divorce as she had never been legally married.

An application for a declaration as to marital status can be made under s.55 of the Family Law Act 1986. If established, the court can, inter alia, declare that the marriage was valid at its inception.

B v B: Leave to appeal refused

With reference to this post, I have it on very good authority (see the comments to the post) that Mr B has been refused leave to appeal to the House of Lords. Apparently, Lord Hoffmann, Lord Hope of Craighead and Baroness Hale of Richmond denied the appeal because "...the petition does not raise an arguable point of law of general public importance". Accordingly, the ruling of the Court of Appeal that Ms B be awarded a greater than half share as all of the wealth had been brought into the marriage by her, thereby departing from equality, stands.

Many thanks to Nightingale26 for keeping me informed throughout.

Tuesday, July 01, 2008

Charon QC interviews Pink Tape

For all family lawyers and anyone with an interest in the family justice system, I highly recommend Charon QC's podcast with Lucy Reed of Pink Tape. Lucy explains how she started her blog to redress the public perception against the family justice system, and goes on to discuss such issues as balancing a young family with practising at the bar, dealing with clients, transparency in family justice, pre-nuptial agreements and even her forthcoming attempt at a half marathon! She even finds something good to say about legal aid work. Excellent stuff.

June Post of the Month

Well, I thought my choice of blawgpost of the month for June was going to be easy, a foregone conclusion really. It was obviously going to be Geeklawyer's Blawg Review #166 - no need to read any other posts. Unfortunately, the review missed June by 2 hours 27 minutes (at least on this side of the Atlantic), so I have to actually do some reading to find another post - damn you, Geeklawyer!

OK, it didn't actually take me long to decide on my favourite post for June. For not just the contents of the post but also the remarkable comments it received (and the calm responses to those comments), the award goes to Nearly Legal for "On the naughty step". Read it and be amazed. The prize of a virtual position for a newly qualified housing/landlord and tenant solicitor is on its way to the deserving Nearly Legal.