Inconsistent

The point has already been made, but it does seem a little odd that the Law Commission is proposing that cohabitants should have an entitlement on intestacy, while at the same time the Government has shelved plans to give cohabitants property rights upon separation. If the Law Commission's proposals are passed into law, we could have the very strange situation whereby if your partners dies intestate then you will automatically receive part of their estate, whereas if they leave you then you will receive nothing. Of course, we already have the situation whereby a cohabitant can benefit from their deceased partner's estate if they make a successful family provision claim although, as the Law commission points out, such a claim is expensive and stressful, and involves litigation against the deceased’s relatives and even perhaps the cohabitant’s own children.

Time for a bit of joined-up thinking, perhaps?

White v Withers: Not swept under the carpet

TV chef Marco Pierre White has succeeded in his appeal against the striking out of his claim against his wife's solicitors, Withers LLP. The full report of the Court of Appeal judgment may be found here, and a summary in The Times, here.

The case may involve a celebrity and a top London law firm, but it clearly has application across the board. It is a very frequent occurrence for a party to an ancillary relief claim to remove or copy documents belonging to the other spouse, often because it is feared that the other spouse may seek to hide assets from the court. Such documents are, of course, known as "Hildebrand documents", so named after the 1992 case Hildebrand v Hildebrand. Lord Justice Ward summarised the Hildebrand rules as follows:

"The Family Courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs."

White alleges that his wife told him that Withers had told her to take his mail. Withers, following the Hildebrand guidelines, maintain that they advised Mrs White that she was only entitled to take copies of documents that she found in the matrimonial home, provided she did not break into any of Mr White's property to obtain access. They considered that White's claim was an abuse of process, designed to 'hassle' his wife. However, the Court of Appeal was particularly concerned about a letter to White from his daughter Letty, which had been intercepted and which White did not see until it was produced by Withers. Lord Justice Ward:

"solicitors are officers of the court and if they are shown to have done wrong they should face the judgment of the court. It is not conducive to the administration of justice that such claims are simply swept under the carpet. It is in the public interest that the bounds of proper conduct be clarified. The interception and retention of Letty's letter ... leaves me with such an uncomfortable feeling that for my part I would be reluctant to shut out the claimant and deny him his day in court. Thus I am not persuaded that this claim has been shown to be an abuse of the process."

Let us hope that, now it is proceeding to trial, the case does, indeed, clarify 'the bounds of proper conduct'.

Essential CPD

I threatened some while back to start making CPD courses. Unfortunately, that project never came to fruition. However, I am pleased to announce that I am now making CPD courses for the CPD Channel. The courses provide one CPD point (or one hour) each, and comprise an audio, a set of notes and five multiple-choice questions, all for £25. My first three courses are now available and are all designed for those new to family law, or those returning to the subject who require a refresher. They are: Essential Divorce, Essential Ancillary Relief Part 1: The Law and Essential Ancillary Relief Part 2: Procedure. Further courses will follow, including more advanced topics and updating courses.

What price vulnerable children?

The Times today has a series of three articles describing the dire state of the under-resourced family justice system, and its consequences for 'vulnerable children' (a phrase that appears in the headline of each article). One article is by Christina Blacklaws, who seems to be running a one-woman campaign to highlight the problems, and is essentially a layperson's version of the article that she wrote for the Gazette last month. The other two articles are both by Frances Gibb, one concerning the risks of the proposed cuts in legal aid and the other dealing with the post-Baby P increase in care applications and its consequences for Cafcass.

The Times has, of course, long taken an interest in the family justice system, and has been running a campaign to open up the courts. Whether or not there is any 'agenda' behind the publication of these articles is unclear, but two things are certain if more resources are not pumped in:

1. The unacceptable delays in the system, which must harm the children involved, will only get worse.

2. The quality of service that those children are likely to get from those within the system will deteriorate, simply because there will not be enough experienced professionals (be they social workers, Cafcass officers or family lawyers) to cope with the demand.

What price vulnerable children?

All men are created equal

In Maine they are voting upon the possible repeal of the state’s newly approved law allowing same-sex couples to marry. Here, 86 year-old veteran Philip Spooner puts the case in favour of the law with dignity and eloquence:

The Baby P Effect

The newspapers are full of stories about the substantial increase in care applications. See, for example, this report in the Guardian and this one in the Independent, both of which appeared in the last 24 hours. Now, this isn't new news - it has been reported for some time that the numbers are up, but I haven't done any care work for many years, so I have hesitated to comment. However, I think that some comment is required.

The primary reason for the increase is, of course, the Baby P case. Agencies are fearful that they will be vilified for making mistakes by failing to protect children, and are therefore applying for care orders in 'lower level' cases, where they would not have done so previously, effectively passing responsibility to the courts. This, of course, is having the effect of overloading the system, which is struggling to cope. This, in turn, will mean more delay in cases where children are in real danger. It will also almost certainly mean that more children will be removed from their families unnecessarily.

This is not the way the system should work. It is, however, the inevitable result of those working in the child protection system being subjected to hysterical, uninformed media criticism, without proper support from government. As I have said here before: who would be a social worker? It is virtually impossible to do a proper job when you know that your every decision will be publicly scrutinised, and your first mistake will likely be your last. I'm sorry, but no system is perfect. People do make mistakes, and anyone saying that we 'must prevent another Baby P tragedy' is just not living in the real world. We cannot prevent tragedies from ever happening. We can, however, minimise them, but this will only happen if those working within the system are allowed to do so without fear.

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Update: I find it somewhat ironic that the media are now saying that innocent families are suffering.

Not clever...

I suspect that quite a few hen-pecked husbands around the world may empathise, but for a Saudi man to allow his wife to find out that he has nicknamed her 'Guantanamo' is not very clever. Now she is apparently threatening divorce unless he pays her "substantial" compensation. Either way his wallet is going to get a lot thinner...

Come lie with me (allegedly)

Personally, as a divorce lawyer I can't see anything wrong with this, even if the divorces were a sham just to get the pension payouts. Well, it's all good business for us, isn't it?

Child Support Jackpot

Not all new ideas from America are good, but I certainly like this one. In Colorado, casinos are now required by law to do a computer check on any patron who wins more than $1,200 in jackpot winnings. The computer will check to see if they owe any child support and if so, the winnings will be paid to the state rather than the winner. The new law is working, too - apparently it has recovered over $600,000 in its first year. Something that should be considered over here perhaps?

Keep your prejudices at home

I nearly posted about this story when I first saw it earlier in the week, but I decided against it. However, now that the story has found its way this side of the Atlantic, perhaps it does deserve a comment.

Keith Bardwell, a justice of the peace in Tangipahoa Parish, Louisiana, refused to officiate at the marriage of a mixed-race couple on the grounds that it would not be fair to any children they might have. Now, I don't like a media witch-hunt demanding that someone lose their job, but it is difficult to see how Mr Bardwell's position can still be tenable. Even if he has a point (and I certainly do not believe that he does), it is obviously not his position to choose who should and should not marry.

The story is very reminiscent of the Lilian Ladele case in this country, where Ms Ladele, a registrar, was quite rightly disciplined after refusing to conduct civil partnership ceremonies.

Wigless: New family blog

I posted recently about the improving health of the UK family law blogosphere. Well, now I'm pleased to report the establishment of another new UK family law blog. Wigless is a "take on the Family Bar", and is written by a student barrister who will be starting as a pupil at a family law chambers in October 2010. He says that the blog will be his "little critique on the most recent developments in the wild and wacky world of family law". Excellent. The content on the blog is naturally limited at present, but it already shows great promise. Add to your blogroll!

Stupefying Legislative Ineptitude

There is an interesting article by Anthony Julius (left) in the Financial Times today, in which he discusses reform of the ancillary relief laws, with reference to the views of Baroness Deech. He says that "reform based purely on making pre-nuptial agreements enforceable – as outlined by Baroness Ruth Deech on Tuesday – is not the way forward". I agree there, although I'm not sure that Baroness Deech is only suggesting that pre-nuptials be made enforceable - I've haven't read her speech, but I understood that she is also proposing a European-style community property regime.

Julius then goes on to discuss three objections to the current system that allows courts to disregard pre-nuptials: that it violates the principle of contract-making autonomy, that it reflects a larger judicial unfairness and that it has the vice of judicial unpredictability. It is when he discusses the third of these that the article becomes most interesting. Julius points out that in 1984 Parliament abolished the requirement that the court attempt to place the parties in the financial position in which they would have been if the marriage had not broken down. He agrees that that was, of course, unworkable but, he says, "in an act of stupefying legislative ineptitude, no other requirement was substituted", with the result that "judges have been left to fill the legislative gap, making things up as they go along, inventing rules to govern the division of matrimonial assets, or “finding” them in the factors listed in the Matrimonial Causes Act". Sometimes, he says, they merely rely upon the 'aspirational quality' of "fairness". As a result, it has "become almost impossible, when advising a divorcing husband or wife, to predict what the courts would decide in their case". Yes, I think that pretty well sums it up.

What is required, Julius suggests, "is legislative reform of the criteria for asset and income division on divorce", although he does not indicate what form that reform should take. What overarching 'requirement' (or 'duty', to use the original wording of the MCA) should the court be given? I have to say that it is hard to think of a requirement that would fit every case and that would not be as bland or unpredictable as "fairness" - anything more specific would surely seriously fetter the discretion of the court. Or should that discretion be (largely) taken away by something like the community property rule that Baroness Deech is proposing?

Whatever the answer, let us hope at least that the addition of another powerful voice to the debate will help to encourage Parliament to finally grasp the nettle and deal with this matter that affects so many lives.

Reality Check #2

A completely different sort of reality check is, I think, urgently required when it comes to Afghanistan. As Divorce Saloon points out, President Karzi, 'our' man in Kabul, has passed the Sharia Personal Status Law which includes in its provisions that custody rights are granted only to fathers and grandfathers, that women can work only with the permission of their husbands, and that husbands can withhold food from wives who refuse to have sex with them. What on Earth are we doing sacrificing the lives of our soldiers and spending billions supporting a regime that passes such abominable laws?

Reality Check #1

Ouch. Michelle Young received a painful reality check when she appeared in court this week in the possession hearing relating to her home in Regent's Park. When she claimed 'exceptional hardship' the lawyer for her landlords pointed out to her that she is no longer rich and that the rent on the property in which she wished to live was £8,666 a month, and suggested that benefits and council housing might be more appropriate for her and the children. Still, she can console herself with the fact that life must surely be even worse for her husband - after all he is £27 million in debt, isn't he? Oh wait, he has an income of £6000 a week and lives in a £1 million flat...

Croc beats husband

Meanwhile, the Telegraph reports upon a wife who preferred a crocodile to her husband. I'm sure many wives can relate to that...

40,000 Moonies Wed

If I was still practising, I would have been there handing out 40,000 business cards...

The Myth Lives On

The pronouncement yesterday of the decree nisi in the Adrian Chiles/Jane Garvey divorce produced the usual slew of tabloid headlines about it being a 'quickie' divorce. There must have even been someone at the High Court timing the pronouncement, with several papers reporting that it took a mere 83 seconds. Yes, I suppose that is quick, but the fact of the matter is that there is no such thing as a 'quickie' divorce. Either the divorce is defended or (as here) it is not. If it is not then the divorce can proceed on the papers, without the necessity of an attendance at court. However, that does not mean that it is particularly quick - it is still likely to take around six months from start to finish, assuming that the decree absolute is not delayed while financial/property matters are being resolved, as is often the case. It can be shorter - the quickest I got a divorce through in 25 years was about three months, but that depends upon how quickly the court deals with it, and nowadays most courts take considerably longer, in my experience at least. The media, however, seem to be convinced that it can be done much more rapidly - I've seen reports that it could only take a couple of weeks - often with the underlying suggestion that this speed somehow undermines the sanctity of marriage. This is just playing upon ignorance.

So, I'll say it again: there is no such thing as a 'quickie' divorce. It is a myth.

Time for Reform

Baroness Deech is back in the news. In a speech today she will apparently say that our divorce laws (at least insofar as they relate to finances) should be remodelled along European lines. This will involve a community property regime, and pre-nuptial agreements being enforceable. The speech may be new but this is, in fact, old news - precisely what she was saying when she hit the headlines a month ago.

As I've indicated before, I don't agree with everything that Baroness Deech says, but I do agree that there should be more certainty in our ancillary relief laws. I also agree that the government has shirked responsibility for re-examining the law, and that it is time for legislative reform, rather than leaving the matter to the vagaries of judicial interpretation (and re-interpretation) of old laws.

In the news...

Some snippets picked up in the news this morning that I thought were worthy of comment:

Anne Tanner (left) posted a piece in the Guardian's Comment Is Free column which asks why absent fathers find it so difficult to gain contact with their children, and what can be done to improve the situation. The article, of course, starts from the premise that: "When parents split, children are all too often separated from their fathers". I'm not sure what she means by "all too often", but I do wonder whether this problem is exaggerated. OK, one child being denied a relationship with their father is one too many, but the vast majority of fathers do retain contact with their children, and many of those who don't choose not to. Leaving that aside, what does Tanner suggest we do about the problem? Two things: more mediation and make the courts more accountable. These things seem to be rolled off like some panacean mantra, but the fact of the matter is that mediation is already available, and opening up the courts suggests that there is either some anti-father conspiracy in the family justice system, or that somehow those working in it will try harder if they are more accountable. Where I do agree with Tanner though, is that the adversarial system exacerbates conflict - as I have said before, an inquisitorial system would surely be better suited to deal with these issues, although to be perfectly honest, I'm not sure how this would work in practice.

Meanwhile, in the Telegraph Boris Johnson has his own unique slant on the news that Mrs Young has secured litigation funding, as I reported in my last post, and the concerns that this may add to London's reputation as 'the divorce capital of the world'. "I am inclined to see this Divorce Fund initiative as the latest evidence of the resilience of the London economy", he says, "Just as the financial services industry is reeling, they come up with a new and inventive offering. Rich wives and toyboys across the world can see the prudence of pestering their spouses to maintain an address in London – just in case it all goes wrong. London lawyers hit pay dirt. London hotels are full of witnesses and the UK media have the joy of reporting the case in a circulation-boosting way." OK, all a bit cynical, but Johnson does make one good point, and I was going to mention it in my post yesterday: this may be a new way for those with substantial family assets ("the folk who winter in Verbier and summer in Palm Beach", as Johnson puts it) to fund their litigation, but it will be of no interest whatsoever to the vast majority of those who use our divorce courts to argue over more modest assets.

Lastly (and I do like to end on a lighter note), I read on Reuters that a Malaysian state, concerned about its soaring divorce rate, is offering "free honeymoons worth up to $440 each to rekindle the romance between married couples on the brink of divorce". Now, I'm not sure what the Family Bar Association of Malaysia has to say about that...

A Shrewd Investment?

The Young divorce case continues to make the headlines. The Daily Mail reports that Mr Young is apparently dating an American model 20 years his junior. Now, I'm not interested in that (although I admit it adds extra tabloid-titillating flavour), but what is interesting is the report in the Financial Times (and elsewhere) that Mrs Young has secured litigation funding for the case from Harbour Litigation Funding. As they explain, litigation funding "is where a party, who is not the Claimant to an action, agrees to cover all or some of the costs of the litigation, in return for a share of the proceeds if the litigation is successful". In other words: no win, no fee. Harbour has apparently previously funded 66 commercial cases, but this is the first time that it has funded a divorce case. I assume from this that they consider Mrs Young has a good chance of success in her ancillary relief claim. Time will tell whether it proves to be a shrewd investment for them.

A Breath of Fresh Air

I've just read the Lawyer of the Week column in The Times. This week it features Yvonne Hossack, the solicitor who campaigns against the closure of care homes and was cleared of allegations of serious professional misconduct. Now, I've not really followed this case, but Yvonne Hossack sounds like a breath of fresh air for the general stereotype of public school, egocentric, venal, supercilious lawyers.

On the subject of supercilious, I was particularly amused by her 'worst day as a lawyer'. After making strenuous efforts to get her client to complete and return his Form E on time, she was rewarded by the District Judge calling her a disgrace to her profession. Typical. What happens to some people when they are promoted to the judiciary? Were they always pompous arses (in which case why on earth were they appointed - old boy network? masons?), or does the thinner atmosphere at their rarified level go to their head? Every lawyer who has ever practised in court must have come across them from time to time. Don't they remember that they had similar problems with clients for whom they acted prior to their elevation?

I also enjoyed her response to the question: What would your advice be to anyone wanting a career in law? She replied: "Remember that the law and justice are not a married couple. At best they are a one-night stand and part company in the morning." I certainly could not have put it better.

A New Dawn?

I had, until very recently, been fearing for the future of the UK family law blogosphere. With no new family law blogs appearing for some time and a number of established blogs being apparently moribund, things were not looking good. In fact, excluding blogs which are little more than an advertisement for the services offered by the author's firm (still a perfectly valid use of blogging), the number of active truly independent family law blogs hardly exceeded the digits on one hand.

Well, things are looking up, at least a little. Not only has Richard Sharp recently started the Family Law Collaborative Divorce Blog, but Mark Chaloner of Laws of Love has returned to the fold after a four-month hiatus and, best of all, Lucy Reed of Pink Tape is back blogging again. Lucy says: "I’m sorry to disappoint anyone out there, but I’m not going away". No disappointment here!

Now, if we could just persuade one or two other backsliders to put finger to keyboard again...

How To Finance Your Divorce

Earning a few bob to pay for your divorce settlement whilst getting a few laughs at the expense of your ex seems a pretty good arrangement to me. John Cleese has started his How To Finance Your Divorce tour in Norway, and here is the first review. I liked the comment by his lawyer about Miss Eichelberger's contribution towards the marriage...

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[Unfortunately, the story has been altered since I wrote this post. The comment by Cleese's lawyer was along the lines: "Imagine how much you would have had to pay if she had made a contribution towards the marriage, such as a child, or a conversation."]

Free Legal Resource Project Grows

Further to this post, the Insite Law Free Legal Resource Project continues to grow. The texts now on the site comprise Contract, Sale of Goods, Criminal Law, Constitutional Law, Equity & Trusts, European Union Law, Evidence, Family Law and Intellectual Property.

As for my own Introduction to Family Law, chapters on marriage, divorce, private law children matters, ancillary relief, cohabitees and taxation are now up. Chapters on child maintenance, domestic violence, public law children matters, nullity, civil partnership and human rights will follow shortly.

September Post of the Month

Thankfully, I know nothing of what it is like to serve in a war zone. I also know nothing about post-traumatic stress disorder. The winner of my Post of the Month trophy for September knows about both of these things. In a very personal and moving post that must have been difficult to write, Oedipus Lex tells of his experiences in the army and, more particularly, since leaving it. "You don’t go on oper­a­tions and come back the same person" he says, yet society seems to know little about the problem, and care even less.

Think it would be fatuous for me to say, as I usually do at this point in these posts, that I am sending Oedipus Lex some amusingly appropriate prize. Instead, I hope that writing the post has some small cathartic effect for him, and I thank him for sharing his experiences with us.

'PTSD — An Introspective' wins my Post of the Month trophy for September.

Podcast Interview #11: Judith Middleton, Judith's Divorce Blog

Today I had the very great pleasure of speaking with Judith Middleton (left), author of Judith's Divorce Blog. Judith is a Partner at Latimer Hinks Solicitors in Darlington, where she specialises in family law. Amongst other things, we talk about blogging, her work, current issues in family law and sailing in the English Channel in a force 8 gale! My thanks to Judith for taking time out of a very busy schedule to take part in the podcast.

The podcast can be found here.