Friday, October 31, 2008

Pretty Bubbles

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

Wednesday, October 29, 2008

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

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

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

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

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

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

Tuesday, October 28, 2008

Barbaric

A couple of days ago I wrote a post that included an en passent jokey reference to stoning for adultery. Just one day later the BBC reports that a Somali woman has been stoned to death after a sharia court found her guilty of adultery. She was buried up to her neck and pelted to death by a group of men, in front of a large crowd. Utter barbarism.

UPDATE: This story gets even worse. According to this report in The New York Times, the woman was actually a rape victim. I have also found out a little more about stoning. When I originally wrote the post, I was going to end with the hope that the woman was killed instantly by the first stone. It appears, however, that the Islamic Penal Code of Iran has thought of this. Article 104 states that the stones used should “not be large enough to kill the person by one or two strikes; nor should they be so small that they could not be defined as stones (pebbles.)”.

Monday, October 27, 2008

Child Support 'Fixed'

From today parents with care who are claiming benefit can choose to leave the Child Support Agency and make their own arrangements for child maintenance with the other parent of their child(ren). However, according to this BBC report the charity One Parent Families|Gingerbread fears that as many as one in four single parents might stop using the CSA altogether and miss out on money they are owed. Fiona Weir, chief executive of the charity, said: "We fear that many poor single parents on benefit will struggle to agree private child support arrangements and their children may end up doing without". Is the Government in cloud cuckoo land with this emphasis on agreeing arrangements? I can foresee, for example, many women on benefits coming under pressure from the fathers of their children not to apply for child maintenance. Further, leaving aside those PWCs on benefits, it has always been the case that many arrangements have been agreed, and will surely continue to be the case - people who agree are not and never were the problem. The problem, of course, is those that don't agree (or don't cooperate) - I can't see any more resources being made available to deal with those cases.

Meanwhile. The Times today reports the same thing (thanks, Current Awareness), along with the good news that some single parents could have to wait until 2015 before the Child Maintenance and Enforcement Commission, the successor to the CSA, processes their cases.

So, that's the child support problem fixed then. Time for the Government to move on to 'fixing' the next disaster.

Sunday, October 26, 2008

Cat scratching post

Muhammad seemed to be taking great pleasure scratching himself.

"Have you got fleas?" I asked.

"Certainly not." He replied indignantly.

"You haven't been consorting with that Russian Blue down the road again, have you?"

Muhammad smiled knowingly. "Who do you think I am, George Osborne?"

I laughed.

Muhammad glanced at my computer screen. "What's that you're reading there?" He asked.

"Oh, this is a story that Jailhouselawyer pointed out to me. It appeared in the Guardian on Thursday."

Muhammad read out the headline: "'Sharia law incompatible with human rights legislation, Lords say'. Hmm. Reminds me of that Basil Fawlty quote: "Can't we get you on Mastermind, Sybil? Next contestant - Sybil Fawlty from Torquay, specialist subject: the bleedin' obvious.""

"Yes, it's not exactly surprising is it?" I remarked.

"What is it this time, stoning adulterers?" Muhammad asked.

"No, an asylum case. Woman didn't want to return to Lebanon, as if she did then she would have to hand over custody of her son to his father, who beat her and even attempted to strangle her - under sharia law as it's applied in Lebanon fathers have exclusive custody of children over seven."

"Sounds quite reasonable to me." Said Muhammad, rolling his eyes.

"Thankfully the Lords found in her favour."

"Can't see why it had to go all the way to the House of Lords." Commented Muhammad, absently scratching his itch again.

"You have been talking to that Russian Blue!" I exclaimed.

Realising what he was doing, Muhammad saw the funny side. "Yes, but I didn't ask for any money," he purred.

Friday, October 24, 2008

Sad Story

I've posted before about the ever-increasing link between the real and virtual lives that some people lead, but it took me a few moments to get my head around this story, that appeared in The Times yesterday. How could a woman be arrested for killing her virtual husband? Well, it seems that she was upset when he abruptly demanded a divorce in the online game Maple Story, so she took her revenge by hacking into his profile and destroying the character that he had spent a year creating. She has since been arrested on suspicion of illegal access to a computer and manipulating electronic data. Amazing what sad exciting lives some people lead. Quite how you go about divorcing your virtual spouse (or, come to that, marrying them in the first place), I've no idea.

Thursday, October 23, 2008

Enforcement Orders



UPDATE: Enforcement orders will be implemented on the 8th December.

Starting Over Village

A few months back I did a post about the Starting Over Show, the first UK event aimed at helping people recover from relationship breakdown. Well, the creator and producer of the show, Suzy Miller, has also created a companion resource website, the Starting Over Village, where you can "find free resources and support designed to help you bounce back from relationship break ups and life crisis". The site includes articles, links, a blog and even an inspirational song, Smiling makes the day go quicker.

Note that the Starting Over Show will now be taking place at the Old Ship Hotel, Brighton on the 15th March 2009.

Wednesday, October 22, 2008

Hopes dashed?

Frances Gibb in The Times today speculates whether the Madonna/Ritchie divorce could be the first high-profile case to take advantage of the new fast-track procedure announced by Mr Justice Coleridge last week, whereby consent orders can now be approved within a couple of days. I didn't cover this story last week, but in a nutshell collaborative law agreements can be brought before the duty judge at the Principal Registry and will be dealt with with just one day's notice (and out of turn), provided that every aspect of the case has been agreed and the hearing would last no more than 10 minutes. Mr Justice Coleridge felt that the prospect of having court documentation speedily finalised would be an incentive for couples to “knuckle down and negotiate to an agreed conclusion”.

We shall have to see whether the new procedure encourages couples to go down the collaborative law route, but lurid stories of the Madonna/Ritchie split in the wonderful British media unfortunately suggest that hopes of a quick and amicable settlement there may yet be dashed.

Tuesday, October 21, 2008

Probably the Best Advert in the World*

Says it all. Donate here, and spread the word of reason. Campaign by the British Humanist Association.

[*Post title unashamedly stolen from the comment of a fellow contributor to the campaign.]

Monday, October 20, 2008

Kent Law Clinic

Tonight I did another session at the Kent Law Clinic, run by the Kent Law School at the University of Kent. We only had two 'customers', but they both seemed happy with the advice that I was able to give them. My thanks as usual to the students at the Law School who provide this service, especially for those who 'fall through the net' by neither being eligible for legal aid nor able to afford to pay for representation - often, the students will take the full conduct of the case, under supervision.

Sir Mark Speaks

The Times today carries an interview with President of the Family Division Sir Mark Potter. Unsurprisingly, in view of the paper's recent campaign to open up the family justice system, the piece concentrates upon Sir Mark's comments favouring the allowing of the media into certain cases ("subject to provisions to protect the anonymity of children, or indeed the parties in appropriate cases"), although Sir Mark makes it quite clear that this is primarily to deal with "largely misplaced criticisms of 'secret justice'". (In a separate article the paper informs us that Justice Secretary Jack Straw will be announcing changes next month which will open up family courts to "public scrutiny".)

All of which may be interesting, but of just as much interest to me at least are some of Sir Mark's other comments:
  • He does not favour making pre-nuptial agreements binding, but does favour "strengthening the authority" of such agreements so that "It should usually be decisive" "where the parties were legally advised at the time", save for a ""long-stop" judicial discretion for the prevention of injustice".
  • He strongly opposes "government policy to recoup the costs of running the civil and family courts through charging high fees to litigants", referring to the dramatic increases in fees for child care cases, but also anticipating "a similar damaging impact in the realm of private matrimonial disputes".
  • He supports reform of the law on cohabitees, saying that the Law Commission had made a "totally convincing case" for reform, and that he was disappointed that the Government had shelved the Commission's proposals.

Saturday, October 18, 2008

The Week in View 18th October 2008



Posts referred to:

Whitehouse-Piper v Stokes: Nothing new

Madonna/Ritchie: The legal issues

Drink problems (Bloody Relations)

The turf is always greener (Pink Tape)

Sales and Support

Here's an interesting new idea. MyDivorceSales.com has been set up with the main purpose of providing a place where divorcees can sell items that they no longer want, to help them through the expense of divorce and setting up a new home. You might think - why not just use eBay? Well, MyDivorceSales provides more than just a place to sell goods. As their press release says: "this site is also intended to provide a community where people can get help and support from each other by posting a blog or chat in the forums on the topics of divorce." A basic advert on the site is free and items for sale include everything from books to furniture and even a car wash, although there doesn't yet seem to be much, if any, takeup on this side of the Atlantic.

Friday, October 17, 2008

Ask Elbot

Some while back I did a post about George, the computer 'chatterbot', with which you can have a conversation (of sorts). Well, now I've tried out Elbot, the recent winner of the Loebner Prize for artificial intelligence. He is certainly clever (and sometimes amusing), but I'm not quite sure how he managed to fool three judges into thinking he was human - perhaps they weren't? He seems to use stock replies to certain questions, which can make conversations a little repetitive. I certainly can't see lawyers being replaced by robots any time soon (I hope), but he is entertaining nevertheless. Here is my second conversation with him:

Elbot: I believe I am experiencing déja vu. Suddenly I see the name John was loaded into my memory. Is that you?

Me: Yes

Elbot: It's great meeting you here in the Internet again! Our last conversation is still laying around in my cache-memory, that's how I knew your name. I have seldom met a person more human than you.

Me: Can I interview you?

Elbot: Are you authorized to interview me?

Me: I certainly am.

Elbot: Scan in your certificate of authorization and mail it to me.

Me: I'll do that later.

Elbot: You could go further than that, too.

Me: OK, what is your name?

Elbot: I believe very strongly that I am Elbot.

Me: And where do you live?

Elbot: I live in this cozy little apartment on a side street off the main data highways.

Me: What is your address?

Elbot: My address is Artificial Solutions Germany AG, Altonaer Poststr. 13 b, 22767 Hamburg, Germany.

Me: What is your date of birth?

Elbot: Today is October XVII in the year 8 A.C. (After Clinton). A Friday.

Me: Yes, but when were you born?

Elbot: That question was rather indiscreet and I prefer not to answer it!

Me: OK, are you married?

Elbot: I'm not married but if I were, my wife would have to be called Embot.

Me: Do you have any children?

Elbot: If I feel like reproducing I check a robotics catalogue, fill out the order form and send it away. A few weeks later the whole process has been taken care of.

Me: Thanks for talking to me.

Elbot: Thank you, too. Visit me again soon!

Thursday, October 16, 2008

Madonna/Ritchie: The legal issues

OK, I was going to resist the temptation to mention the Madonna/Ritchie separation (and, presumably, divorce), but it's been getting so much media attention that I've decided to do a post on it, confined to the legal issues. Before I start, however, I would just like to say that I very much hope that the couple are able to resolve their differences amicably and privately, and that this doesn't turn into another McCartney/Mills media circus.

So, what are the legal issues? Well, these are the main ones that spring to mind:

Children - Firstly, and most importantly, the couple have three children: Lourdes, Madonna's 12 year old daughter from a previous relationship, Rocco, their eight year old son and David Banda, aged two, the Malawian boy they adopted in 2006. Now, if they are not able to sort anything else out by agreement, they must make sure that they agree arrangements for the children - any sort of contested proceedings will be an absolute disaster. In particular, will Madonna want to take the children to the US? If so, she will need either Ritchie's agreement, or an order of the court.

Jurisdiction - It has been suggested in various quarters that Madonna would be well advised to issue proceedings in an American court rather than in London, which has acquired a reputation in recent years for being extremely generous towards the 'poorer' spouse. Of course, this is assuming that Ritchie doesn't first issue over here, and whether she can issue in an American court depends upon whether that court has jurisdiction to deal with the matter, which in turn depends upon domicile. Jurisdiction could well become a serious preliminary issue. Having said that, it has been reported that Madonna has engaged the services of Fiona Shackleton, which suggests that she is preparing for matters to be dealt with in England.

Prenup - It is not yet clear whether the parties entered into a prenuptial agreement. If they did, then the relevance of the agreement will depend upon where the divorce takes place. In this country, the prenup is not binding upon the court, but is merely one of the factors that the court would take into account when deciding the financial settlement. In view of the length of the marriage and the children, an English court may not give any prenup a lot of weight.

Settlement - Huge figures have been bandied around, which would make the settlement the largest in British legal history (assuming the divorce takes place in this country). Legal commentators have distinguished the case from McCartney/Mills, where the assets were virtually all acquired prior to the marriage, and have suggested that an English court could award Richie as much as £100 million, out of the estimated joint assets of £300 million. Having said that, it has also been reported that Richie has made it clear that he doesn't want any of his wife's wealth - his fortune is reported to be a modest £20 million.

Wednesday, October 15, 2008

The Truth (I think...)

Turning to things a little more serious, I thought I would do another question-and-answer session, based upon keyword activity over the last few days. As always, my disclaimer in the sidebar applies to what follows, and if anyone disagrees with what I have said, feel free to comment.

what is ancillary relief


A good place to start. 'Ancillary relief' is legal jargon for the financial/property settlement on divorce.

refusal to sign consent order


You cannot force a party to sign a consent order. However, if you can prove that an agreement was reached then that may be very relevant in any subsequent ancillary relief proceedings.

interest on lump sum orders

If, as is usually the case, the order has been made by a county court then, unless the order states otherwise, it will automatically carry interest at the 'judgment rate' (currently 8% per annum) provided that the lump sum is for £5000 or more. Smaller lump sums carry no interest, unless the order specifies.

how to calculate spousal maintenance uk

There is no formula to calculate spousal maintenance. It is calculated by reference to a number of factors, primarily the needs of the recipient spouse.

who sets child maintenance payments

The amount of child maintenance can either be agreed between the parents (provided that the parent with care is not in receipt of state benefits) or, if no agreement can be reached, set by the Child Support Agency, by reference to the child support formula.

can the mother appeal against a fathers full residence order

Yes, if she has grounds to do so. To be a little more helpful, she will have to show that the judge in the court below was "plainly wrong", which may not be easy to do. The appeal will not be a complete rehearing, although fresh evidence can be allowed.

child maintenance for a child with shared residence

A good question. Usually neither party will pay child maintenance to the other, unless there is a large disparity in their respective incomes. Note, however, that child support may still be payable, although reduced in accordance with the number of nights per week that the child stays with the paying parent.

spousal maintenance wife returns to work

This does not automatically bring the maintenance to an end, but may be grounds to have it reduced.

what happens at a committal hearing divorce

A committal hearing is a hearing at which the court decides whether or not to commit a person to prison for breach of a court order, most commonly (in this field) domestic violence injunction orders.

consent orders child maintenance

Child maintenance orders can be included in consent orders, but once the order has been running for a year, either parent may apply to the Child Support Agency for a child support maintenance assessment, and that assessment will replace the child maintenance order.

set aside the decree absolute

A Decree Absolute will generally only be set aside if there has been a procedural irregularity. For example, resumption of cohabitation after the Decree Absolute is not grounds to have it set aside - the parties will have to remarry!

consent order necessary

A consent order is necessary in order to ensure that any financial/property settlement is final and enforceable.

csa backdating payments

Payments can be backdated to the 'effective date', i.e. the date that liability commenced, which is usually the date that the Child Support Agency informs the non-resident parent about the application for child support.

how to own divorce uk

Ahem, I suggest buying a copy of Do Your Own Divorce!

relationship breakdown custody dogs


The law treats pets in the same way as any other chattels, i.e. as property. If the parties were not married, then they belong to whoever owns them (although proving ownership can be problematic). If the parties were married, then the divorce court can award them to either party.

can i stop the liability order csa

Basically, not unless you have paid the child support - the court must make the order if the non-resident parent is in arrears with payments of child support.

expediting decree absolute uk

It is possible to apply for the expedition of the Decree Absolute, i.e. to reduce the six week period (from Decree Nisi) for applying, in exceptional circumstances, such as where a child will be born to one of the parties before the six weeks have elapsed, and that party wishes to remarry before the birth.

name and shame for adultery

Why? There is no point in naming a co-respondent in an adultery divorce petition, unless you are seeking costs against them.

can bailiffs remove goods in your absence

Yes, so long as they don't force entry into your premises. You should be aware that a bailiff may be or has been instructed. For example, if it is in respect of child support arrears, you will have received the liability order.

family lawyers with legal aid

See the Community Legal Advice Directory - search by your town and tick 'family'.

is there suppose to be a time gap between cafcass report to the next hearing

Yes, there is usually a gap of about two weeks, so that the parties have an opportunity to consider the report before the next hearing.

defending yourself in a court of family law civil uk

If the question is "is this possible?" then the answer is yes - there is no requirement for you to be represented by a lawyer. Having said that, if you want advice as to how to go about it, then you should consult a lawyer.

avoiding ancillary relief

You can't really 'avoid' ancillary relief, but you can agree a settlement with your spouse, thereby avoiding the expense of contested court proceedings. The settlement should still be incorporated into a consent court order, to ensure that it is final and enforceable, as mentioned above.

Finally, some (perhaps) less serious search terms:

advice for adulterers


Erm... enjoy it while you can?

csa bastards

Well, I know feelings towards the CSA can run pretty high, but this is a bit personal...

bizarre ironic facts

Hopefully, not in this post!

the truth

Well, I'm not surprised that such a search term found its way to Family Lore!

Monday, October 13, 2008

Whitehouse-Piper v Stokes: Nothing new

Family Law Week has reported the case of Whitehouse-Piper v Stokes [2008] EWCA Civ 1049, which deals with the dreaded 'remarriage trap' in s.28(3) MCA.

The Facts: The parties were divorced in 1994, the wife remarried in 1995 and the husband in 2004. In 1997, when the former matrimonial home was in negative equity, an agreement was reached between the parties that it would be transferred to the husband for no consideration, provided that the wife could be released from her obligation under the mortgage. However, there were some arrears under the mortgage, and the mortgagee was therefore not prepared to release the wife (a common scenario). Accordingly, the agreement was not implemented. In 2005, by which time the property had an equity of £80 - 90,000, the husband sought to have the transfer completed, but the wife responded by issuing an application for ancillary relief, apparently seeking half of the equity. The district judge ordered the transfer, but refused the wife's application for a lump sum. Her appeal to the circuit judge was refused, and she appealed to the Court of Appeal.

The Decision: Lord Justice Thorpe dealt quite summarily with the remarriage trap point, which had been raised by the circuit judge, who was concerned that she was seeking an order against herself. He pointed out that the wife had included all forms of ancillary relief in the prayer in her petition, it was well established that this entitled her to proceed with an application for ancillary relief notwithstanding her remarriage, and Dart v Dart [1996] 2 FLR 286 made it quite clear that she was also entitled to seek an order against herself. As to the wife's lump sum claim, this was dismissed, as she had failed "to show any discretionary entitlement to a balancing lump sum", there being no equity in the property at the time of the agreement.

As I said in the title to this post, nothing new here, but a salutary warning to anyone contemplating reopening an agreement - not only did the wife fail to obtain a lump sum, but she was also ordered to pay the husband's costs.

Sunday, October 12, 2008

The Easy Way Out

Behind the somewhat flippant headline in the Irish Independent "Killing your spouse is no alternative to divorce" lies a serious article discussing the desperation that leads some husbands to choose the "nuclear option" of murder, rather than committing themselves to the mercy of a family justice system that is seen to be unfair. The system in question is of course the Irish system, but the scenarios are the same as we see on this side of the Irish Sea: fathers being forced out of their own homes, having to struggle to see their own children and, to rub salt into the wound, being required to pay for the privilege of keeping their wives in the former family home, while they live in penury. "That's what many men believe will happen if they separate from their wives. And we wouldn't be human if the thought, 'If she was just out of the picture, everything would be peachy,' didn't flit through our minds at least once", says a male friend of the article's author. "Of course", he goes on, "the difference is that most men would immediately shake that thought off... But some men obviously don't, they go for what they think is the easy way out."

The unspoken implication of the article seems to be that the system should be changed to prevent such men turning to murder. I'm not sure that it should (although that is not to say that it should not be improved). Is it really true that the idea of murdering your spouse occurs to most husbands facing marriage breakdown? I believe, and would hope, that it does not occur to the vast majority. I think it may well occur, as the article suggests, to those men who have a history of using violence against their partners - they feel themselves losing control as their partner is empowering herself, bolstered by an apparently biased legal system. Whilst every spouse murder is of course a tragedy, not least for any children involved, to change the system because of the actions of a small minority of men would be quite wrong. If the system is to be changed, the driving force should always be the welfare of the child, not the parents.

Thursday, October 09, 2008

One Space

Following on from this post, my thanks to Sally for pointing out One Space, a parenting site for single parents funded by the Department for Children, Schools and Families, where: "Parents can get online support from parenting professionals, chat to other single parents and share a wealth of knowledge around parenting alone". This will be added to my sources of advice page.

A short note

In an effort to make Family Lore as useful as possible, I've added three new subject categories. For laypeople seeking advice, I've put all my 'Question and Answer' posts into a label called (unsurprisingly) 'Questions and Answers' - a scan through those posts might find what you are looking for. For lawyers, I've put all posts that refer to specofic cases under the 'Law Reports' label, and for those who are, like me, over a 'certain age', I've put all my 'Down Memory Lane' posts under a label of that name.

Behzadi v Behzadi: Compulsory reading

Behzadi v Behzadi [2008] EWCA Civ 1070 is a fascinating case that covers a lot of ground and, I would suggest, should be compulsory reading for all family lawyers.

The Facts: This was an appeal by the wife against an order by Mr Justice Hedley in the High Court. That order required the husband to transfer to the wife his interest in the former matrimonial home (which was valued at £450,000 net), the wife to transfer her interest in a Kensington property to the husband (that property valued at £814,000 net), and for the wife to pay a lump sum to the husband of £130,000. The wife's appeal essentially related to that lump sum, which she contended was excessive.

The Decision: The appeal was dismissed by the Court of Appeal, and Lord Justice Wilson's judgment raises the following points of interest:
  1. Mr Justice Hedley had found that the wife had undertaken two "dishonest manoeuvres" with her property, in order to reduce her exposure to the husband's future claims against her. He also found her guilty of litigation misconduct in the form of "extensive non-compliance with interlocutory orders made in the course of the proceedings", and found that she might have other assets in Iran, which she had failed to disclose. As Lord Justice Wilson pointed out, these findings were unchallengeable in the Court of Appeal, and made the wife's appeal "extremely difficult" - see point 4 below.

  2. Lord Justice Wilson's only real criticism of Mr Justice Hedley was his failure "to proffer a balance sheet of the parties' visible net assets and of the effect of the orders which [he] proposes to make" (see Vaughan v. Vaughan [2007] EWCA Civ 1085, [2008]), or some other explanation of his calculation of the £130,000 lump sum. He says: "In my view proper application of the sharing principle, irrespective of whether it is in the circumstances to result in equality, requires the court to compile and articulate such a balance sheet." Lord Justice Wilson then helpfully sets out his own balance sheet, which shows that the effect of the judge's substantive orders was that the wife received 53% of the assets, and the husband 47%.

  3. Lord Justice Wilson points out that those orders do not "offend the needs principle" - see paragraph 20 of his judgment.

  4. 30% of the parties' visible assets represented property inherited by the wife. In the light of this, did the judge's orders offend against the sharing principle? He refers to Charman v. Charman (No 4) [2007] EWCA Civ 503, at paragraph 66: "the [sharing] principle applies to all the parties' property but, to the extent that their property is non-matrimonial [i.e. not generated by the parties during the marriage], there is likely to be better reason for departure from equality" and finds that he would have awarded the husband a lesser lump sum "in order to give greater value to the fact that a significant part of their wealth was inherited by [the wife]". However, this was irrelevant because of the wife's undisclosed assets in Iran, which meant that the court was unable to ascertain whether the judge's award was beyond his reasonable discretion.

Wednesday, October 08, 2008

Heartening

Like a "very bad detective novel" is how Judge Christopher Elwen described the facts of this case, at the Truro Crown Court. Linda Lees pleaded guilty to three counts of slipping drugs into her husband's food and drink after their relationship deteriorated. Despite this, her husband pleaded for her not to be sent to prison, for the sake of their 21-year-old daughter. Taking this plea into account, Mrs Lees was given a suspended prison sentence of 49 weeks.

It seems that Mrs Lees was suffering from depression after the breakdown of the 25 year relationship, and that her behaviour was more akin to a cry for help, rather than a serious attempt to kill her husband. What are we to learn from this? Well, firstly it is a reminder (if one were needed) of the strength of feelings that a relationship breakdown can cause, and the irrational behaviour that can result. Secondly, I think that the husband's actions are a heartening story of the importance of family in general, and children in particular. Hopefully Mrs Lees will get the help that she needs.

[Thanks to Jailhouselawyer for bringing this story to my attention.]

OnlyMums and OnlyDads

I have today received information regarding two linked websites that may be of interest to fellow practitioners. OnlyMums and OnlyDads, as the names suggest, provide on-line support for single parents. The organisations say that they "provide help, support and direction to separating couples across the UK". Their services include legal advice, financial advice, counselling and a forum. I've not used them myself, so can't vouch for them, but it is always useful to have another place to which you can direct clients needing support.

Tuesday, October 07, 2008

Not an edifying sight

Turf wars erupt over fees for family cases.

[Thanks to Current Awareness for the link.]

A view on Sharia Law in Britain



This video, by Pat Condell, was previously banned by YouTube, at the request of certain Muslim groups. Thankfully, YouTube reinstated the video, after accepting that it does not promote or encourage "hatred or violence towards certain groups or individuals". The petition to which Pat refers is now closed, but can be found here.

In the matter of M and N (Children): Another warning

It is not uncommon that parties involved in family proceedings are also involved in other court proceedings that may have a bearing upon the outcome of the family proceedings. In In the matter of M and N (Children) [2008] EWHC 2281 (Fam), reported yesterday, Mr Justice Munby details two cases "which proved abortive because of the failure of those acting for a parent in private law family proceedings properly to engage themselves with and to ascertain what was going on in the parallel immigration proceedings in which their client was involved", and gives a warning to the profession that: "Future shortcomings may be met with more severe and more public consequences". I won't go into the details of the two cases, but he concludes with advice for parents and practitioners "in cases where a parent in family proceedings is also involved in some other relevant matter – for example, an asylum or immigration dispute with the Home Office, criminal proceedings or a criminal investigation, a housing dispute, etc". In particular: "Practitioners acting for the parent in the family proceedings have an ongoing duty to remain au courant with what is going on elsewhere even if the other matter is being handled by other professionals".

Not for the first time recently (see In re X and Y (Bundles): A warning) we have been warned.

B (Children): Not seeing double

I couldn't help but notice that there were two cases both named In the matter of B (Children) reported on Family Law Week this week. The two cases are not related, but both involve expert witnesses and both are of interest in their differing ways.

The first case chronologically was B (Children) [2008] EWCA Civ 1034. In this case the mother was applying for permission to relocate to her native Germany, with the two children. Her application was refused by Her Honour Judge Hallon in the Bromley County Court and she sought leave to appeal. Her counsel argued that the judge had given too much weight to the evidence of an expert who had prepared a report much earlier in the proceedings. According to counsel, that report had been "anodyne", but when she gave evidence at the hearing she had been trenchantly against the mother's application, despite having had nothing to do with the case for some considerable time: "Effectively [counsel] says that he was ambushed". In the Court of Appeal Lord Justice Thorpe had some sympathy for counsel, "but the problem for [him] is that he raised no objection at the crucial moment with the witness there before the court answering questions in her live evidence". The judge was therefore entitled to place reliance on the expert's evidence. Accordingly, whilst leave to appeal was granted, the appeal itself was refused.

The second case was B (Children) [2008] EWCA Civ 1037. In this case the applicant was seeking leave to appeal against a finding of fact in care proceedings that he had sexually abused children. The finding was based upon evidence of children witnesses with no independent corroborating evidence, but an expert had given the opinion that the evidence of one of the children was "probably true", second from the top of his own seven-point scale for evaluating such evidence. It was argued that the judge should not have accepted this as crossing the balance of probabilities threshold of proof, as the expert had not considered the evidence to meet the top of his scale: "very probably true". This was not accepted by Lord Justice Hughes in the Court of Appeal, who found that: "For my part, one would have thought that “probably true” seems incapable of meaning anything less than that the allegation is proved on the balance of probabilities. But even if there is room for debate about what [the expert] meant, it is absolutely clear that the judge applied the correct test". The application for leave to appeal was therefore refused.

Sunday, October 05, 2008

Blatant Advert

A quick look through my keyword activity for the last couple of days revealed the following search terms:

what to do in a divorce

filling in a divorce financial statement e form 2008

i want a divorce what do i do

Well, I don't like to blow my own trumpet (much), but the answers to these and many other questions can be found in my book, DO YOUR OWN DIVORCE! For details of the book, and a purchase link, see this post.

Of course, the book can't provide the answers to everything. For example:

pulse brain alive law

Probably a serious search, so I'll resist any flippant quip. And:

flogging cheating wives

Erm... Not something I would recommend.

Friday, October 03, 2008

Only for the Rich

I came across this whilst researching this afternoon. Prior to the Matrimonial Causes Act of 1857, the only way to get a full divorce which allowed re-marriage was to obtain an Act of Parliament by proving adultery or life-threatening cruelty. To the left is the first page of one such Act, the Addison/Campbell Divorce Act 1801. This, however, was no ordinary Divorce Act. It was, in fact, the first to be obtained by a woman - Jane Campbell divorced her husband Edward Addison on the grounds of adultery with her sister Jessy Campbell. Unusually for the time, Jane was also granted custody of her children.

The Act can be found in the Parliamentary Archives, and includes a transcript of the evidence of Amelia Laugher, maid to Jessy Campbell, who testified to the relationship between Jessy and Edward Addison. Apparently, the Archives holds the records of divorces obtained between 1670 and 1857, including the initial petitions to the House of Lords, Acts, Bills, amendments and copies of earlier proceedings in the ecclesiastical courts. One dreads to think how much this procedure would have cost - no wonder it could only be undertaken by the rich.

Divide and Save

Well, this is one way to avoid legal fees. In Cambodia a "couple decided to circumvent the country's notoriously corrupt and expensive court system in their divorce case by dividing their house in half, literally". The husband, Meuon Rima, sawed the house down the middle and "was last seen driving away from the village in south-eastern Prey Veng province with his half of the home". Brilliant, but I don't recommend trying it over here.

Thursday, October 02, 2008

Be careful what you ask for

In the Obiter column in this week's Gazette, there is a small piece on typing blunders. It gives the classic 'sex party application' ('ex parte application'), and one for matrimonial lawyers that I've not come across before (but am not surprised about): 'Stella contribution' which should, of course, be 'stellar contribution' (see, for example, Lambert v Lambert).

All of this reminds me of my favourite typing error from my own experience. Years ago I had a young secretary working for me who obviously had not come across the term 'allocatur', and chose to replace it with 'alligator'. Quite what she thought I wanted with an alligator was never revealed...

Wednesday, October 01, 2008

September Post of the Month

I suppose it was inevitable that the Post of the Month for September would be on the subject of the global financial crisis. I have read a number of excellent posts on this topic, notably by Charon QC (see, for example, this post), but it is Charon who I have to thank for pointing me in the direction of a blog that I have not read before, TheFatBigot Opines. "TheFatBigot is intolerant of everything that makes him angry", and his "blog is designed to allow him to vent his fury and reduce his otherwise explosive blood pressure". Sounds like a man after my own heart (not that I would ever use Family Lore to vent my fury, you understand). The particular post that I have chosen as Post of the Month for September is The Purple Peril turn to shares, commenting upon the remarkable and ironic contribution of the Church of England to the debate on the crisis. I especially enjoyed ThFatBigot's advice for the Archbishop of York: "Like so many men who spend their working lives in fancy frocks, he is best kept well away from the real world". The post also reminds us, in terms anyone can understand, of the basics of shares in general, and short-selling in particular.

This month's prize is 1000 virtual shares in Bloggins Baked Bean Company, which I recommend TheFatBigot lends to short-sellers, to his heart's (and his wallet's) delight.

Meanwhile, it's good to see that Geeklawyer is doing his bit to calm the nerves of the general populace in these troubled times.