Thursday, December 31, 2009

Old John's Almanac 2010

Having once again achieved 100% success in my predictions for the top family law news stories of the last year, here are my predictions for 2010:

January - The bad weather returns, causing the country to grind to a halt again and preventing the annual January surge in divorces. Thousands of divorce lawyers take to the roads to clear the snow.

February - Tiger Woods A certain American golfer is granted a super-injunction by the High Court banning all reporting of his divorce in this country.

March - The Government calls a snap election; after a record low turnout, Labour loses when Gordon Brown forgets to vote.

April - The new Conservative government shows off its pro-marriage credentials by announcing that it intends to ban divorce. Unfortunately, they make such a hash of the No Family Law Act 2010 that it will never come into force...

May - Tesco start offering divorces. They can be found on the pharmaceutical shelves, in the painkillers section.

June - The legal aid budget for the year runs out. The media calls for fat-cat legal aid lawyers to work for nothing. Legal aid lawyers don't notice the difference.

July - A gallant England side lose the World Cup final to Germany on penalties. Fans turn to alcohol to ease the pain of defeat; fans' wives turn to divorce lawyers to ease the pain of their husbands...

August - The Office for National Statistics announces that the divorce rate has fallen again. The Department for Work and Pensions announces that the number of unemployed solicitors has increased again. (OK, I say this every year...)

September - News from America that a husband is claiming that his wife's hair should count as marital property. "Well, she spent enough of my money on hair-dos," he tells the court.

October - Fathers' rights group The Real Families Need Fathers 4 Justice pelt Prime Minister David Cameron with eggs. Labour promise to implement all their policies when they are returned to power.

November - Lord Justice Chumley-Smythe finds a way of getting the word "bollocks" into one of his judgments.

December - Senior management at the Child Support Agency are again named in the New Year honours list, for their services to the loss of billions of pounds in child support.

Happy New Year!

Sunday, December 27, 2009

Top Ten Cases of 2009


Another annual tradition seems to be listing the top ten cases of the year. I'm not entirely sure of the point of such a list, but nevertheless here is my selection, in no particular order:

1. Myerson v Myerson [2009] EWCA Civ 282 - One of the biggest cases of the year in terms of the publicity that it attracted, Myerson involved a Barder appeal by the husband, after the value of his shareholding plummeted when the recession hit, rendering the divorce settlement unfair, according to the husband. The Court of Appeal dismissed his appeal, in a judgment that came as no surprise to me, for the reasons I explained in this post.

2.
CP v AR & Anor [2009] EWCA Civ 358 - Any case where the judge uses the work 'fuck' in the judgment goes in my list! In fact, Lord Justice Wall was giving a very serious warning to warring parents of the serious harm that their actions were causing to their child.

3. White v Withers LLP & Anor [2009] EWCA Civ 1122 - Another high-publicity case, involving celebrity chef Marco Pierre White. The case was interesting because White succeeded in his appeal against the striking out of his claim against his wife's solicitors Withers LLP, thereby giving family lawyers something more to consider when advising their clients regarding Hildebrand documents.

4. Re B (A Child) [2009] UKSC 5
- The first reported family law case of the new Supreme Court, Re B was notable because the child's grandmother was granted a residence order, overruling the decision of the Court of Appeal, thereby confirming that there is no presumption in favour of a biological parent, and that the paramount consideration is: what is best for the welfare of the child?

5. Re R (A Child) [2009] EWHC B38 - Described as "a warning to other mothers who do not acknowledge a father's rights", the father successfully applied for a residence order in respect of his eleven year old son R, alleging that the mother had prevented R from having proper contact with him, and that the mother had alienated R from him. The decision was subsequently upheld by the Court of Appeal.

6.
Re I (A Child) [2009] UKSC 10 - Another Supreme Court case, this concerned an appeal by the mother of a child residing in Pakistan against a decision that the English courts had no jurisdiction to determine the future level of her contact with the child. The Supreme Court held that the English courts do have jurisdiction, notwithstanding the fact that the child was habitually resident outside the EU, provided that the tests laid down in Brussels II Revised Article 12 could be satisfied.

7. Radmacher v Granatino
[2009] EWCA Civ 649 - A case that caused a frenzy of media activity and learned comment. The Court of Appeal decided that the court below had been wrong not to give 'decisive weight' to the pre-nuptial agreement that the parties had signed, when dealing with the husband's application for ancillary relief. This decision does not, as some suggested, mean that pre-nupyial agreements are now binding in this country, but perhaps brings that situation a step closer.

8. Paulin v Paulin & Anor [2009] EWCA Civ 221 - Perhaps not an important judgment, but I was pleased that the husband's 'devious' tactic of making himself bankrupt in order to defeat the wife's claims failed. Hopefully, this will serve as a warning to others who may be considering using this tactic.

9. Re
Child X (Residence & Contact- Rights of Media Attendance) [2009] EWHC 1728 - Another pleasing result, with the President confirming that, as far as the media is concerned, cases involving children of celebrities should be treated no differently from cases involving anyone else's children.

10. Re A Minor (Family Proceedings: Electronic Tagging) [2009] EWHC 710 - An important decision, confirming that electronic tagging is available to the family courts, and setting out the procedure. The case concerned a contact application by a mother who had twice wrongfully removed the child to her country of origin. The parties agreed that when the child was with the mother, the mother should be subject to a curfew supported by electronic tagging.

Image: FreeFoto.com.

Saturday, December 26, 2009

Review of the Year

Having thankfully got rid of Xmas once more, it's time for that other tedious annual tradition, the Review of the Year. In an attempt to make things slightly more interesting, this review will cover the, shall we say, slightly less serious family law stories that made the headlines this year (for a serious review of the year, see here).

January - The year began with the story from America that a husband who donated his kidney to his wife wanted it back, as part of the divorce settlement. As we will see, this was not the only American divorce involving a bodily part of the wife. Meanwhile, over here we had a cuckolded husband attempting to claim compensation from his adulterous wife for the cost of raising the child that she had by her lover.

February - Brought us the news that a woman was seeking a divorce from her husband after she found out he was having gay sex in Second Life.

March - Attention turned to Australia with a divorce dispute involving a hose, and then back to America, where a Swedish countess was demanding maintenance of $54,000 a week to cover her basic expenses.

April - Brought us the sad news that Corri Fetman's career as a Playboy columnist was over. The month ended on a high note though, with Lord Justice wall using the word 'fuck' in court.

May - Took us to Kenya, where a man was suing the leaders of a coalition of women’s groups who organised a seven-day boycott of sexual relations with men, as a protest at the country's economic and political problems.

June - In England, a husband had to resort to appearing in court in women's clothes to obtain the order he sought, and a husband in America sued his wife's lover for 'stealing' his wife.

July - Others may throw a modest divorce party, but Slavica Ecclestone celebrated her divorce from Bernie by purchasing a £36.5 milllion private jet.

August - All about marital assets this month, with poor Fred Matt having to sell his toy collection to pay for his divorce, and a New Jersey appeals panel deciding that dogs were not chairs.

September - Took us to South Africa, where 44 year-old Milton Mbhele married four brides simultaneously.

October - Brought us the news that a Malaysian state was offering free honeymoons to couples on the verge of breaking up, in an effort to reduce the divorce rate. We also found out about the Australian wife who preferred a crocodile to her husband, and the Saudi husband who regretted nicknaming his wife 'Guantanamo'.

November - Back here in the UK, we had the oldest couple ever to divorce, at the age of 98, and I reported the case of the Taiwanese woman who asked for a divorce from her husband because his penis was too long.

December - Brought us two more cases from America, firstly the case of the motorised bar stool that was being auctioned to pay off arrears of child support, and finally the other case involving a part of the wife's body, where a husband is claiming that his ex-wife's breast implants are marital property.

Let us hope for more of the same next year!

Monday, December 21, 2009

Happy Winter Solstice!


Happy Winter Solstice to all readers and sponsors of Family Lore!

Saturday, December 19, 2009

Money, money, money

As the American media (who are still allowed to report the matter) wait with baited breath to see whether a certain golfer will shortly be required to make the biggest divorce payout in history, we on this side of the Atlantic also have tales to tell of money and divorce, albeit involving more modest sums.

The latest episode in the on-going saga of the Young v Young divorce was enacted at the High Court yesterday,when Mrs Justice Black ordered Mr Young to pay to Mrs Young maintenance pending suit of £27,500 a month, in addition to her rent of £10,400 a month and school fees of £36,000 a year. One may wonder how Mr Young will be able to afford to pay such sums when he professes to be 'broke', but Mrs Justice Black was "entirely satisfied that the husband has available monies to pay maintenance". As to the size of the award, she justified it by saying that she took into account the standard of living that the family were used to prior to the separation. That, dear reader, is how the other half lives...

Meanwhile, another divorce involving money (and a touch of scandal) is hitting the headlines. In what is becoming known as the 'indecent proposal' divorce, Mr Justice McFarlane has rejected the application of the wife, Alzbeta Holmokova, to have the case heard in private. She had sought this because of the ''salacious'' allegations being made by her husband, Denis Morley, including that Goldman Sachs banker Yann Samuelides had offered her £500,000 to leave him. Of course, media organisations had resisted the privacy application, arguing that scandal sells newspapers there was a public interest in open justice. For more gory details relating to this case, see this report in the Mirror.

Friday, December 18, 2009

The perfect Xmas gift


I contemplated doing a post suggesting that my book Do Your Own Divorce would make a good Xmas present for your spouse (gift wrapped by Amazon, of course), but I decided against it, as I judged that it would be in bad taste. Well, perhaps my judgement was wrong. Vanessa Lloyd Platt's firm Lloyd Platt & Co are reportedly offering "divorce gift vouchers", calling them the "must have" Christmas present for unhappy couples. The vouchers, which cost from £125 plus VAT for a half hour interview, have apparently been purchased by "husbands, wives, mistresses, and people using them to suggest to friends and family members that they should get a divorce".

Who says all the good law marketing ideas come from the other side of the Atlantic?

Thursday, December 17, 2009

Missing Pearl

The Telegraph has reported an international child abduction case involving five year old girl Pearl Gavaghan da Massa (left), who was taken to the USA a year ago by her mother, and has not been seen since. The High Court has declared that Pearl was removed illegally and allowed details of the case to be disclosed, in the hope that Pearl can be traced. Pearl's father, who has shared residence, has set up a website with further details, including a press release, which has contact details for anyone with any information as to Pearl's whereabouts.

What price court security?

Throughout my career I often noted with concern the almost total lack of security in family courts. Criminal courts would have some basic security, but family and other civil courts would have none at all save, latterly, for checks at the court entrance (although not even that at all courts).

An appalling story from Austria shows just what can happen when a court has inadequate security: a "jilted" husband shot and killed a court employee when he failed to find the judge who granted his wife a divorce. I know that, as with everything, it comes down to cost, but the story serves as a reminder of just how high feelings can run in family matters, and that those feelings can drive parties to the most extreme actions. Surely, some security is required in our civil courts as well as our criminal courts?

Wednesday, December 16, 2009

Re R: A warning to mothers

I think that the case of Re R (A Child), reported today on Bailii (and previously in the press), deserves some comment. It concerns an eleven year-old boy (R) who has lived with his mother all of his life. His father applied for a residence order in favour of himself and his wife, alleging that the mother had prevented R from having proper contact with him, and that the mother had alienated R from him. These allegations were denied, but the application was granted, despite the fact that R had consistently told the Guardian that he did not wish to see his father, and wanted contact to stop.

The case was heard by His Honour Judge Bond in the Bournemouth District Registry. He said that the court was "being asked to make a momentous decision". He went on:
"To remove a child from his mother in any circumstances is a very serious step. R has lived with his mother all his life. The effect of a decision to change residence upon the mother will be severe. R will be aware of that. I pause to ask myself if the proposed course of action is really in R's overall welfare."
Having so paused, he nevertheless decided that it was. This decision was subsequently upheld by Lord Justice Wall in the Court of Appeal, a ruling that the Telegraph called "a warning to other mothers who do not acknowledge a father’s rights", Lord Justice Wall having described Judge Bond's ruling as a "sensible, careful, well thought out and balanced judgment".

A decision that will give some comfort to fathers' rights groups? I doubt it, but we shall see...

Tuesday, December 15, 2009

Ladele loses appeal

I am pleased to see that Lilian Ladele (left), the (former) registrar who refused to conduct same-sex civil partnerships because of her homophobic religious views has had her appeal refused by the Court of Appeal. I have of course mentioned her previously on this blog, including here and here. The Court of Appeal also refused her permission to appeal to the Supreme Court, so hopefully that is the end of this sorry matter.

[My thanks to John Hirst of Jailhouselawyer's Blog for bring my attention to this story.]

Monday, December 14, 2009

Criminal Carnal Knowledge

On my internet travels this morning whilst doing my daily Family Lore Focus news update I came across this story, which surprised me. I didn't realise any civilised countries still had the crime of adultery on their statute books. According to Wikipedia, New Hampshire is not the only US state that does (apparently about half still do), with penalties varying from a scary life sentence in Michigan (do they have any room left in their prisons?) to a rather more reasonable $10 fine in Maryland.

All of this set me to doing a little research regarding adultery as a crime in this country. Now, correct me if I'm wrong, but it seems that adultery was not a crime here until that well-known killjoy Oliver Cromwell passed the Adultery Act in 1650, which quite reasonably imposed the death penalty "in case any married woman shall ... be carnally known by any man (other them her Husband) (except in Case of Ravishment)". According to this report in Hansard (discussing, of all things, the Child Support Bill), the Adultery Act did have one slight flaw: it insisted that conviction should require that the crime be committed in the presence of two witnesses...

Unsurprisingly given his record, Charles II repealed the Adultery Act when he was crowned and, as far as I am aware, adultery has never been a crime in this country since. However, according to this article adultery: "has been, theoretically at least, punishable in England by virtue of unwritten law in the ecclesiastical courts, though the offence has never been pursued with any great or systematic vigor". Amusingly, the article continues: "and it may be remembered that Blackstone charges the framers of the canon law with an improper levity in respect to this sort of offences from their own aptitude to commit them."

Lastly note that, despite its wonderfully euphemistic name, 'criminal conversation' was not a crime, but a tort. [For those who have not heard of it, criminal conversation was a civil suit by which the plaintiff claimed damages against the defendant who had committed adultery with the plaintiff's spouse. I understand that this also still exists in some US states, but it was abolished in this country in 1857.]

Saturday, December 12, 2009

Friday, December 11, 2009

Appeasing the Media

Last week the Department of Social Policy and Social Work at the University of Oxford, funded by the Nuffield Foundation, published a Briefing Paper The Media and the Family Courts – key information and questions about the Children, Schools and Families Bill (PDF). It cannot have made good reading for Jack Straw. The paper raises concerns that the proposals to relax the restrictions on media reporting of family court cases, contained in Part 2 of the Children, Schools and Families Bill, lack sufficient clarity about what can be reported and could put the privacy of vulnerable children at risk.

The premise of the paper is that:
"these changes are being introduced very rapidly and without proper consultation. There has also been little public debate because the media, usually a source of public discussion, have a clear interest in promoting the changes. As a result, media coverage of this issue has been far from balanced. This Briefing Paper therefore aims to facilitate a more informed debate as the Bill goes through Parliament, by discussing the proposals and comparing the approaches taken in other jurisdictions."

Apart from the worry "that the media were less interested in promoting the interests of children and families than in the salacious presentation of the details of people’s private lives", the Paper discusses three major concerns over the proposals:

1. Why is the Government rushing ahead with these proposals at this time?

2. Why is personal privacy being sacrificed as part of these proposals?

3. What are the resource implications of these proposals?

It is important, says the Paper, that these concerns are considered and given appropriate scrutiny while the Bill is being debated.

The Paper concludes with a number of key questions, including:
  • Why is the Bill so complex?

  • Has there been adequate consultation over the latest proposals?

  • Why is there not clearer guidance about protecting anonymity?

  • Why is personal privacy being put at risk?

  • Will experts stop providing their services to the Family Courts?

  • Does the Bill violate the right to respect for private and family life contained in the Human Rights Act 1998 (Article 8)?
Let us hope that the Paper helps to ensure that these proposals are given the proper consideration that they require.

A media release relating to the Paper can be found here, in PDF format.

Grey: The difficulty of proving cohabitation

The case of Grey v Grey, reported in the Telegraph today, highlights the perennial problem of proving whether or not a party is cohabiting. Mr Grey is paying maintenance of £125,000 per annum to his ex-wife, despite the fact that she is now pregnant by another man, with whom Mr Grey alleges she is cohabiting. Mrs Grey, on the other hand, denies that she is cohabiting and says that the pregnancy was not intended.

Mr Grey is appealing against a decision of Mr Justice Singer in the High Court, who ruled that Mrs Grey's relationship did not amount to cohabitation. The Court of Appeal is not expected to give its judgment until the new year.

The report states that Mr Grey (presumably through his counsel, Martin Pointer QC) has asked the Court of Appeal to look again at the rules on cohabitation of divorcees. However, it is difficult to see what can be done in terms of a rule change - in the end, it simply boils down to evidence: does the evidence prove that this person is cohabiting? Unfortunately, it is extremely difficult to prove what is going on behind closed doors in someone's personal life, and there is also of course the problem that any cohabitation is likely to be suspended if the cohabiting party gets wind of the fact that their ex knows about it.

It will be very interesting to hear what the Court of Appeal has to say.

Thursday, December 10, 2009

Defying common sense

Well, I didn't pick up much in the way of serious family law news this morning, but I did pick up a couple of odd stories:

Firstly, from America via the ever-informative Divorce Saloon, the case of a husband who is claiming that his ex-wife's breast implants are marital property. Erik Isaacson is appealing against a decision to exclude the value of his former wife Traci's implants from a list of their assets and debts. He values them at $5,500, and if they were included, then he would have been entitled to other property to that value, to 'balance out the ledger'. Apparently, the judge was not impressed and said that the claim defied common sense.

The second story, also defying common sense, is one of revenge by a husband against his wife after she left him. Now, I've heard of all sorts of targets for revenge (usually the other party's person or property), but never the church in which you were married. Well, that was Robert Knowles' target, as he drove his Vauxhall Astra repeatedly into the doors of the Flame Community Church in Rowley Regis, West Midlands, until they broke and then drove down the aisle and smashed into a stage, causing £20,000 worth of damage. Knowles is now serving a ten month jail sentence.

Wednesday, December 09, 2009

The Horse Dancer


The Horse Dancer by Jojo Moyes is not a novel that I would have chosen myself (you could say that the author chose it for me), but I thoroughly enjoyed reading it, even though it was occasionally something of a busman's holiday. It tells the converging stories of a young girl who seeks to emulate her grandfather who once rode for Le Cadre Noir, and, yes, a family lawyer, whose life is at a crossroads. Along the way it examines ambitions and aspirations, relationships and love.

As I have indicated, this book was not my usual fare, but it surprised me and drew me in as the story unfolded in ways that were sometimes expected, sometimes not. Throughout, Moyes holds it together with a tight, believable narrative that keeps you reading to the end. Definitely recommended.

A time for giving... and getting back


As you contemplate what to buy your spouse for Xmas the most important consideration is, of course, whether you will get any of it back when you divorce. Well, in California at least, it seems that the answer is 'maybe'. There, a wife has succeeded in an appeal against a decision that a Porsche purchased for her husband with her money was his separate property. Instead, the appeal court decided that it was community property, so that she retains a share.

Of course, we don't have a community property regime over here...

Tuesday, December 08, 2009

How to recover child support


Whilst doing my news update this morning, I came across two contrasting stories on the subject of child support, one from each side of the Atlantic.

The first story appeared in the Lancashire Telegraph, and is the usual kind of depressing child support fare that we have all seen so often: the Child Support Agency failing for five years to recover child support from the non-resident parent, and the parent with care's MP demanding an overhaul of the child support system. As the Child Maintenance and Enforcement Commission point out in the story, the system is being overhauled, but will that put an end to stories like this? I doubt it.

Perhaps, as I have indicated here before, we should take a look at the way they do things in America. It has been reported by nj.com that New Jersey sheriffs served child support warrants on no fewer than 864 delinquent parents in a three-day nonsupport sweep that began on the 1st of December. The sweep is conducted twice a year, and resulted in $165,000 being collected. Now, THAT is the way to recover child support...

Local Authority v M & M & Ors: Unprecedented

Mr Justice Hedley has been rather busy. Another of his cases, Local Authority v M & M & Ors [2009] EWHC 3172, was reported yesterday and in it he took "the unprecedented step of excluding a father with parental responsibility, whose whereabouts are not unknown, from any knowledge of, let alone participation in, care proceedings involving his children".

The circumstances leading to this extraordinary decision are that the father is currently serving a prison sentence and the mother has made serious allegations of violence and threats against her and the children (including threats to kill or kidnap a child) by the father and his family. The mother is therefore trying to hide from the father and his family. The father is unaware of the care proceedings and the mother, supported by the guardian, applied for an order that the father be discharged as a party so that the proceedings continue without any involvement on his part. The local authority objected, mainly because they wished to obtain information from the father and his family and could not do so without revealing the existence of the care proceedings. Notwithstanding this, Mr Justice Hedley made the order discharging the father, although he made it clear that the order must be kept under review, particularly were the father to seek contact or were the local authority to seek to remove the children from the care of the mother.

O & Anor v Orkney Island Council: Do budget needs trump welfare?

I don't recall ever having previously heard of a senior judge having to adjourn a case in order to calm down, or at least admitting to this. That, however, is what Mr Justice Hedley (left) did in the case O & Anor v Orkney Island Council [2009] EWHC 3173, when he became so angered that two local authorities had 'abandoned' a sick child, in order to save money. He said:

"The local authorities were present at court not to assist – in fairness they did not even make a pretence at that – but to obtain legal authority to distance themselves from responsibility for this child. I confess that as I listened to these matters, disbelief was not the only thought or emotion that I experienced. Indeed I found it necessary to adjourn briefly so as to ensure that no wholly improper judicial observations escaped my lips. This judgment has been reserved not because the issues are difficult (they are not) but because I did not trust myself to express my views in a temperate manner. I have always had a high regard for the contribution that social workers make to the family justice system but if in fact we have reached a stage where budget needs trumps welfare then we all need to know. Hence my adjourning this judgment into open court."

A summary of the case may be found on Family Lore Case Digest, here.

Monday, December 07, 2009

Warning: Affairs can be very damaging to a marriage

When I posted the 'Life is Short - Have an Affair' dating agency video a couple of days ago I was thinking 'only in America'. How wrong I was. I don't know which side of the Atlantic the 'discreet and confidential extra-marital dating service' Illicit Encounters is based, but it currently boasts 395, 832 'genuine UK users'. What I like best about Illicit Encounters is their disclaimer, which requires no comment:

"WARNING: NOT EVERYONE IS SUITED TO HAVING AN AFFAIR. THEY ARE NOT AN ALTERNATIVE TO WORKING ON OR ENDING A MARRIAGE. NOT ALL AFFAIRS HAVE A POSITIVE EFFECT ON A MARRIAGE, SOME CAN BE VERY DAMAGING. ALWAYS CONSIDER OTHER PEOPLE AND IF YOU ARE GOING TO HAVE AN AFFAIR, PLEASE SELECT YOUR PARTNER WISELY."

Lord Justice Munby calls for reform

There is an interesting, and perhaps significant, interview with Lord Justice Munby (left) in The Times today, in which he discusses the reform of family law. Significant because Lord Justice Munby has, of course, been Chairman of the Law Commission, since the 1st August.

Lord Justice Munby discusses two areas for reform. Firstly, he explains why cohabiting couples need new legal rights to protect them from injustice if they separate, and secondly he calls for a review of the ancillary relief rules governing division of assets on divorce. On the latter he has, most interestingly, dared to question the 'holy grail' that there should be one set of rules for all, irrespective of the value of their assets, suggesting that it may be advantageous having different rules for the wealthy. As I have said here many times before, I think that a review of the ancillary relief rules is long overdue and that some clearer guidance is required. However, having one set of rules for the rich and one for everyone else would, I suspect, be somewhat controversial.

Saturday, December 05, 2009

Divorce iPhone App

...and on the subject of adultery, I would like to announce my new iPhone App, In flagrante delicto. If you catch your spouse in the act of adultery, you will be able to take incriminating photos, record the location with the phone's GPS and transmit all the information to your divorce lawyer, who will issue proceedings for you. In flagrante delicto will soon be available as a free download (of course, I'll take a cut of your solicitor's fees).

[In case any of you think I'm completely off my head, see this story in The Times this week.]

Life is Short. Have an Affair.

As a divorce lawyer, I must endorse this wonderful advert for a US dating agency:

Thursday, December 03, 2009

Letter From America

My cat and co-blogger Muhammad has been taking a vacation in America, staying with his distant cousin Bobcat Bill in the Catskills. Here is a letter that I received from him today:

Dearest Master John,

Well, I'm still getting over Thanksgiving - that turkey was the best I've ever tasted. I'll definitely need to go on a diet when I get back!

As I'm sure you've heard, the big news over here is the Tiger Woods story. Now, as you know I'm not one for tittle-tattle gossip, but Elie Mystal in Above the Law has written an interesting piece explaining why Tiger (I love that name) probably has to keep his mouth shut. You see, in Florida the police have a duty to investigate domestic disputes and prosecute the perpetrator of domestic violence, irrespective of whether or not the victim wants to press charges. So, if Tiger's wife did assault him (with or without a golf club - I love the irony of the world's greatest golfer being (allegedly) assaulted with a golf club), then staying silent could just be keeping her out of jail. As Mystal says, a lot of non-lawyers in America don't understand this and are upset at Tiger keeping silent, because it is damaging his image (as if (allegedly) seeing other women hasn't), to which Mystal says:

"I’d love to hear Tiger make this argument to Elin: “Hi honey. You know, even though you (allegedly) attacked me because I (allegedly) cheated on you, I can keep you out of jail. But I’ve decided against it. You see, it’s hurting my brand and my image to keep my mouth shut right now. Sorry. Don’t worry, I’ll find a really good (hot) babysitter to take care of the kids while you serve your time.”"

Excellent stuff. Incidentally, bookmakers over here are offering 3/1 odds that Tiger and his wife will divorce in the next 12 months. I bet their lawyers are salivating...

On the other hand, divorce lawyers in California will definitely not be salivating over the prospect that divorce may just be banned in that state. You remember doing a post some while back about California passing Proposition 8, banning same-sex marriages in that state? Supporters argued that a ban was needed to protect the sanctity of traditional marriage. Now, a supporter of gay marriage is taking that argument to its logical extreme, and saying that divorce is a threat to marriage. He is therefore pushing for a ballot measure to ban divorce in California. Sounds quite reasonable to me - maybe Tiger would do well to move to California.

On a more serious note, a case in Chicago has caused a bit of a stir. In England we may have grandmothers preferred to parents when it comes to bringing up children, but here they've gone one better and granted custody to a babysitter! The mother's lawyer says that he's been practicing [sic] law for 30 years, and has never seen anything like it.

Finally, I have to tell you about the weirdest story I've come across while I've been over here. I've never heard of a motorised bar stool before (there's something intrinsically wrong with the idea of a motorised bar stool, but I can't put my paw on it), but apparently twenty-nine-year-old Kile Wygle was convicted of driving under the influence after he crashed his bar stool in Newark, Ohio, in March. Meanwhile, the bar stool was seized by the authorities, who will be auctioning it on eBay this week, with the judge ordering that any profits should go towards the $37,000 child support arrears that Wygle owed. Looking at the bar stool, I'm not sure that the sale proceeds will be enough to clear the arrears. Still, full marks to the court and the authorities for their efforts to recover child support arrears - a lesson there for our own Child Support Agency, perhaps?

With that, I'm off to curl up for a kip.

All for now,





Muhammad

Wednesday, December 02, 2009

Smith v Smith: Crossing the threshold

The case of Smith v Smith [2009] EWCA Civ 1297, reported today, is of considerable interest.

When there are divorce proceedings pending or likely to be filed shortly, all financial/property matters are usually dealt with under the ancillary relief jurisdiction. Indeed, any application under any other jurisdiction will normally be consolidated with the ancillary relief proceedings. However, in Smith v Smith the husband successfully obtained an order for sale under s.14 of the Trusts of Land and Appointment of Trustees Act 1996 ('TOLATA'), despite the fact that a contested divorce hearing was due in less than two months. The wife appealed the order, but her appeal has been dismissed by the Court of Appeal.

So, why was it appropriate for the sale of the house to be dealt with under TOLATA here? The answer is that the wife was defending the divorce, and had already thereby delayed any grant of a decree (and therefore any ancillary relief application) by more than six months. Meanwhile, the husband was having to continue to fund the outgoings on the property, in particular servicing a mortgage of £7 million. Lord Justice Wilson:

"I am clear that, confronted with an application under TOLATA between separated spouses, the court should embark upon the discretionary exercise by asking itself whether the issue raised by the application can reasonably be left to be resolved within an application for ancillary relief following divorce. It is in principle much more desirable that an issue, as here, about sale of the home should be resolved within an application for ancillary relief. For there the court will undertake a holistic examination of all aspects of the parties' finances, needs, contributions etc; will devise the fairest set of arrangements for the future housing and finances of each of them; and, to that end, will provide for the transfer of capital, as well perhaps as for payment of future income, from one to the other. By an order under TOLATA, on the other hand, the court lays down only one piece of the jigsaw, namely that the home be sold, without its being able to survey the whole picture by laying down the others. So at this threshold stage of the enquiry into an application under TOLATA between spouses the court will, in particular, have regard to the question whether, within a time-frame tolerable in all the circumstances, the parties will become able to apply for ancillary relief ... In my view the husband's application under TOLATA crossed the threshold stage of the enquiry."

It was also argued that, by finding that the purpose for which the home had been acquired, namely as a home in which the parties might live together, was a purpose which could no longer be achieved, the recorder impermissibly pre-empted the hearing of the divorce suit. This was dealt with realistically, by the lower court finding that, in the circumstances, "such was a purpose which retention of the home could never again serve", even in the unlikely event of the court finding that the marriage had not irretrievably broken down.

On the subject of divorce, Lord Justice Wilson (left) had a swipe at Parliament: "Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to s.1(2)(b) of the Act of 1973, even when defended, at an increasingly low level." Perhaps something for the next government to consider?

Tax and marriage (Warning: This post contains politics)


I am generally not interested in politics, but it seems that marriage will be one of the "key battlegrounds" in the next general election, where the two main parties will be fighting over that minority of the population who still exercise their right to vote. Over the last few days there has been quite a spat going on, with David Cameron (apparently, he is the leader of the Tory party) accusing Labour of a “pathological” opposition to marriage, and Children's Secretary Ed Balls-up responding by saying that Cameroon was talking “complete and utter nonsense”. Yawn...

Now, if you've not lost the will to live you can read this article in the Independent today, which sets out both sides of the argument as to whether the tax system should be used to encourage marriage. It seems that the Tories are planning a tax break for married couples (although where they will find the money, when the country is a gazillion pounds in debt, is not explained), which will give married couples an extra £23 a week. Wow, £23 - not much, but I suppose it will go some way towards paying off the huge debts incurred to cover the costs of that expensive wedding, reception and honeymoon. The Tories are hoping that this carrot will bribe entice a few more of those awful cohabiting couples to tie the knot, thereby shoring up our broken society.

On the other hand, Labour are saying that such a policy will treat unmarried and separated families as “second class”, and that it will direct money where it is not needed - the better off, and childless married couples. I suppose that after 12 years in power, they do know a thing or two about directing money where it is not needed: unnecessary extra bureaucracy everywhere, unwinnable foreign wars, immoral bonuses for failed fat-cat bankers, etc...

...and that is quite enough politics for one post. I'm off to lay down in a darkened room.

Tuesday, December 01, 2009

Re: I (A Child)

I have received the following press release from Dawson Cornwall:

Re: I (A Child)

Supreme Court Decision


Reunite International Child Abduction Centre and the Centre for Family Law and Practice, London Metropolitan University were granted leave to appear as interveners and were represented pro bono by the barristers Henry Setright QC and Teertha Gupta of 4 Paper Buildings instructed by Anne-Marie Hutchinson OBE of Dawson Cornwell in Re: I (a child).

The appeal was considered by the UK Supreme Court on 12 and 13 October 2009 and judgment was handed down this morning 1 December 2009. It is the first family law case to be considered in the Supreme court and the first occasion on which the highest court in the land has had an opportunity to consider the Council Regulation (EC) No: 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility, which is more commonly known as Brussels II revised.

The judgment means that parents may choose to litigate about the children in the courts of England & Wales, notwithstanding the fact that their children are habitually resident elsewhere in the world outside the EU, provided that they can satisfy the tests laid down in Article 12.

Lady Hale:

“We have had the benefit of an intervention from Reunite, an organisation with great knowledge and experience in the field of international child abduction, and represented by lawyers who also have knowledge and experience of how these things work on the ground.”

“The UK-Pakistan Judicial Protocol on Children Matters is not an international agreement between States. It is an understanding first reached in January 2003 between the then President of the Family Division of the High Court in England and Wales and the then Chief Justice of the Supreme Court of Pakistan, supplemented in September 2003 by guidelines for judicial co-operation to which Judges from the Court of Session in Scotland and the High Court in Northern Ireland were also party. It was agreed that “in normal circumstances the welfare of a child is best determined by the courts of the country of the child’s habitual/ordinary residence” (para 1). Hence, if a child is wrongfully removed from his country of ordinary residence, the courts of the country to which he is taken should not ordinarily exercise jurisdiction save for the purpose of sending the child back (para 2). The same should apply if a child is brought from one country to the other for the purposes of contact, and is then wrongfully retained (para 3). This very largely reflects the principal provisions of the Hague Convention on Child Abduction.

Neither of the two substantive paragraphs is directly applicable to this case. There has been no abduction or wrongful retention. We are concerned only with a very limited exception, in far from “normal” circumstances, to the general statement in paragraph 1. The two can, as Mr Setright pointed out, complement one another. The courts in Pakistan might welcome the fact that the courts in England had investigated the situation here and put in place safeguards which would enable the child to visit his mother and other members of his family in this country in safety. The Protocol would operate to secure his prompt return to Pakistan after any such visit. Alternatively, the court in this country might, after beginning its investigation, conclude that, had this been a case within the EU, it would have been appropriate to invoke the procedure in article 15 of Brussels II Revised, for requesting the courts of another Member State which is “better placed to hear the case” to assume jurisdiction. The Protocol, with the associated Guidelines for judicial co-operation, provides the ideal vehicle for achieving this outside the EU. In the view of Reunite, therefore, far from undermining the Protocol, article 12 can work harmoniously with it.”

“In this case there are two reasons to conclude that the exercise of jurisdiction in this country would be in the child’s interests. The first is the presumption in article 12.4. Although expressed as a “deeming” provision, no-one suggests that this is irrebuttable. But it makes sense. If the child is habitually resident in a country outside the EU which, like Pakistan, is not a party to the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, then even if the EU country in question is a party to that Convention, there would be no provision for recognition and enforcement of one another’s orders. If, therefore, the parties have accepted the jurisdiction of an EU State, it makes sense for that State to determine the issue. The difficulty or otherwise of holding the proceedings in the third State in question are obviously relevant. It is not suggested that it would be impossible to hold these proceedings in Pakistan, but while neither party has had difficulty with the proceedings here, the mother would certainly face difficulties litigating in Pakistan.”

November Post of the Month

The issue of property rights for cohabitants and what its supporters are trying to achieve is terribly misunderstood, and it is not helpful when one of those who does not understand occupies a position where their voice will be widely heard. I am speaking, of course, of Baroness Deech, who has been waging a particularly crude and offensive campaign against reform of this area. Thankfully, there are voices of reason, and one of the best expositions of why such reform is required (and dismantling of Baroness Deech's arguments) is a post I have mentioned here previously: Why I disagree with Baroness Deech and her views on cohabitation by Marilyn Stowe, which is the winner of my November Post of the Month trophy. Do read the post, if you have not done so already.

(Marilyn is also to be congratulated for standing up recently to a particularly nasty piece of internet bullying when her blog was temporarily changed by a hacker or hackers who obviously disagree with the right to freedom of speech.)