Sunday, January 31, 2010

You can't have too much of a good thing...

Realising that Family Lore may not be sufficient to satiate your desire for my pearls of family law blogging wisdom, I thought I would mention that for the last three months I have also been blogging for You can find my posts here.

Saturday, January 30, 2010

Nigel Shepherd on the divorce rate drop

I came across this on the Resolution website:

Cynics may not accept his answer to the first question, denying that the drop in divorces is unwelcome news for divorce lawyers, but then I am not a cynic...

Friday, January 29, 2010

Like a Virgin

It may only have a tenuous link to family law, but I had to laugh at this, found on Geekologie. At Certified Virgin you can prove your virginity by obtaining a Certificate of Virginity. As the site says: "Whether you are a virgin, feel like a virgin, or want to be a virgin again, getting a virginity certificate is probably the easiest way to go." Who could argue with that?

Part of all proceeds will be going to aids research.

Police Pensions: Essential knowledge

Further to this post regarding armed forces pensions, the latest Pension relief brief from Bradshaw Dixon Moore ('BDM') looks at the equally tricky issue of police pensions, and is recommended reading. As with armed forces pensions, CETV valuations are not appropriate with police pensions. "A simple case from our files with one PPS 1987 pension makes the point," say BDM: "The CETV was £285,000. Our valuation, based on retiring with an immediate pension at age 50 was £640,000." Enough said.

As before, if you haven't done so already I suggest you sign up to Pension relief brief, which you can do here.

Collaboration helps take the conflict out of divorce cases

I have received the following news release from Latimer Hinks:

Latimer Hinks solicitors’ family law specialist Judith Middleton is advising couples, who may be about to split up after a fractious Christmas break, they should look at alternatives before resorting to the courts.
The first few weeks of January are the busiest time of the year for family lawyers with unhappy couples starting divorce proceedings after being cooped up together during the festive break.
But Judith Middleton is cautioning couples to think carefully and try mediation and collaboration before rushing to court, as marriage breakdown can be damaging both financially and to children.

In the current recession, the mortgage market is affecting couples who split as it is no longer so easy to get a loan to buy property. A separation may result in the one who leaves the family home having to rent for the foreseeable future until the main family home is sold or funds raised against it as part of a settlement.
Divorces can also have a devastating impact on children, according to the Royal College of Psychiatrists.
It says children’s feelings of fear, anger and rejection are often made worse by the fact that many have to move home and, sometimes, school when parents separate, and most families in this situation come under some financial strain.
More than half of couples divorcing in the UK in 2007 had at least one child aged under 16, according to the College, meaning that there were more than 110,000 children who were aged under 16 when their parents divorced. 20% of these children were under five years old. However, many more children go through parental separation each year that are not included in figures like this, as their parents were not married.
Judith believes that couples should be encouraged to look at mediation or collaboration to resolve issues around finances and the children rather than go to court.

A solicitor can put a client in contact with a mediator, who will talk to the couple individually about how the process works. Meetings are then held about the issues needing to be resolved, to exchange financial information and to look at the options available.
Once proposals have been put together that the couple find acceptable, the mediator prepares a summary along with any financial details and these will be sent to each party for them to discuss with their solicitor, who will then convert it into a legal binding document and carry out any necessary implementation.
The collaborative route involves each person appointing their own lawyer but instead of conducting negotiations between them and their partner by letter or phone, the couples meet together to work things out face to face.
Each party’s lawyer is by their side throughout the process and therefore they benefit from legal support as they go. The aim of collaborative law is to resolve family disputes without going to court.

Judith said: “Mediation is surprisingly effective in cases where emotions can make it difficult to achieve a settlement any other way, for example in family matters or disputes over wills.

“Often a party may enter into the mediation process with a completely negative attitude and a determination not to concede a single issue, and yet by the end of the day they are happy to accept a compromise that gives them the essentials of what they were seeking.”

She added: “I would also urge couples to consider collaboration, which can help resolve differences without having to resort to a court hearing.

“One of the benefits of the collaborative process is that it’s not driven by a timetable imposed by the court. So to a large extent the process can be built around a family’s individual timetable and priorities, which can help take some of the stress and conflict out of seeking a divorce settlement.”
Judith is the Tees Valley’s spokesperson for Resolution, which represents more than 5,700 family lawyers nationwide.

More taxes spent on indoctrination

I was overjoyed to see that the first state-funded Hindu school has now formally opened, to go alongside all the other faith delusion schools that the taxpayer is paying for. Quite why in the twenty-first century we should have to sponsor places whose primary aim is to perpetuate their own particular version of mumbo-jumbo nonsense (and thereby preserve artificial divisions in society) is completely beyond me. Unfortunately recent governments, short of rational people, have favoured these establishments (for pecuniary reasons?) and there seems little prospect of us moving to a modern, secular education system in the foreseeable future.

Accordingly, I am off to set up the Church of the Flying Spaghetti Monster School, so that I can claim my share of the education budget...

Ten-minute marriage

If my last post was a bit depressing for divorce lawyers, here is a story that will warm their hearts. Last Saturday in Tours, France, a marriage lasted only ten minutes before the bride decided it was over. She ran back into the Town Hall where the ceremony had taken place and demanded an annulment, but was told that this was not possible and that the couple would have to find lawyers and apply for a divorce through the courts, just like everyone else.

Music to the ears.

Thursday, January 28, 2010

Hard Times

Whether you accept the BBC version that the divorce rate is the lowest for 29 years, or The Times' version that it is the lowest for 33 years, now is clearly not the best time to be a divorce lawyer...

[My thanks to the ever-vigilant John Hirst of Jailhouselawyer's Blog for the heads-up on this story.]

Wednesday, January 27, 2010


I posted a few weeks back about an 'extra marital dating agency'. Well, it appears that another such agency, Marital Affair (slogan: "Adult Dating where the grass is always greener"), has attracted the adverse attention of a facebook group created by Jon Kuhrt, an employee of a Christian charity in London (my thanks to Andrew Woolley of the Family Law Blog for the heads-up on this).

The group, Stop marital affair advertising publicly in the UK, takes particular exception to the billboards that Marital Affair have, ahem, had erected around the country. The billboards show a picture of a man with no shirt on and a bra over his shoulder and have the caption: "HELLO GIRLS. Get instant excitement at" Kuhrt says that he "can't think of anything more irresponsible that could be advertised" and claims that the site is "feeding on people's weaknesses and helping them to lie and ruin their own as well as their partners, and their families and children's lives". He accepts that such sites will always exist, but says that "we do not have to tolerate their advertising in public places".

The group, which has attracted over 3,500 members (as at the time of writing this post), made a complaint about the billboards to the Advertising Standards Authority, but this was rejected by the Authority, as "the poster's content and presentation were not explicit and it was unlikely to cause serious or widespread offence or be seen as irresponsible". A quick look at the facebook group indicates that they do not consider this to be the end of the matter.

Meanwhile, it has been pointed out that this whole 'affair' (pun intended) could actually be even better (and certainly cheaper) advertising for the agency than the billboards themselves.

For myself, I tend to agree with Andrew Woolley. Whilst I may find the whole idea of extra marital dating agencies to be somewhat seedy and unpleasant, the ultimate responsibility for the damage done by extra-marital affairs lies, of course, with those who have the affairs, rather than any agency - I would have thought that the 'clients' of such agencies are surely likely to have affairs anyway (if they haven't already), and that the existence of such agencies would not therefore seriously increase the number of people having affairs... would they?

Does Charon have a point, or is he just making mischief?

In a post a couple of days ago in which he contemplated the divorce laws of Britain Charon QC pondered why lawyers who deal with the fantastically rich are so rich themselves. "I can only presume that these lawyers charge rich people more for exactly the same advice as lawyers dealing with ‘ordinary people’", he says, and poses the question: "The law for rich and poor must be ‘roughly’ the same, surely?"

Unfortunately, I am not fantastically rich. I spent most of my career working at the coal-face, acting for those 'ordinary people' with their ordinary means, or even, dare I say it, doing legal aid work. If I were still practising, my hourly private charging rate would now be about £190 - typical for someone of my experience working in an average provincial high-street practice. I do not know how much the lawyers for the rich and famous charge these days, but I do recall a few years back hearing of one who charged £600 an hour. Was the work that he did more than three times more complex than the work that I did?

I can only speak for the divorce laws of England and Wales, but there may actually be something in the argument that the law is more complicated for the rich (although even if it is, whether it is more than three times more complex is a moot point). In recent years there have been a string of high-money cases reaching the upper courts (which are beyond the means of the hoi-polloi) where the judgments that have been handed down seem to have little or no relevance to those of more modest means. It sounds like a good question for a law student, but one could ask: Is it a fiction that we have one set of ancillary relief rules applicable to all divorcing couples, irrespective of their means?

Charon goes on, in his inimitable style: "The rich lawyers may argue that the financial affairs of the maniacally rich are ‘far more complex’… there are tax issues, off-shore laws to consider…blah blah blah… but, I would have thought that less well paid lawyers who deal with normal people (who do not have an account at the RichBastardsBank) still have complex issues to sort?"

I think there are two issues here: cases that are more difficult because of their complex issues (Charon's point), and cases that are more voluminous, because of the large number of assets. The latter can be dealt with quite quickly: more assets may mean more paperwork to deal with, and therefore more time spent on the case (=higher legal costs) but, on the face of it, that should not equate to higher charging rates - lawyers dealing with cases involving modest assets could earn the same, simply by having a higher volume of clients.

The first issue is more difficult to deal with: are the tax issues, offshore trusts etc. that arise when acting for the super-rich more complicated to deal with than, for example, the problems that arise when trying to provide for two separate families out of the means of one? I suppose that it could be argued that knowledge of such things as offshore trusts is rarer, simply because there is less need for such expertise, and therefore that knowledge should come at a premium, but I am not entirely convinced. In any event, I'm sure that most high-street practitioners would be quite capable of dealing with such matters, were there the need.

The last point I want to make is this: Charon singles out divorce law, but could not a similar argument be made for other areas of law? Is it not the case that all (or at least most) lawyers who act for wealthy clients charge over the odds? Are the legal issues involved in, for example, corporate mergers and acquisitions that much more complex than in other areas of law? Discuss...

Tuesday, January 26, 2010

Attitudes towards cohabitation

I've just been looking at the press release for the British Social Attitudes ('BSA') 26th Report, which was published today. Along with the unsurprising news that fewer people in Britain feel an obligation to vote than at any time since the question was first posed on BSA in 1991, the Report has some interesting findings regarding attitudes towards cohabitation.

Cohabitation, it seems, is becoming increasingly acceptable, with 45% of those questioned agreeing that it ‘makes no difference to children whether their parents are married to each other or just living together’, up from 38% in 1998. This rather contradicts those, particularly the Tories, who maintain that it is far better for children if their parents are married. The press release suggests that the change is "partly because younger, more liberal, generations are gradually replacing older, less liberal, ones" and goes on to say that "on many issues, like cohabitation, people are also becoming more tolerant as they get older, reflecting their life experiences". I'm sure that this is the case. Interestingly, the press release states that "Britain is more tolerant than many other European countries of “non-traditional” family arrangements", although whether this is because we are genuinely more tolerant here or simply because more couples cohabit here, is not clear.

What is clear is that with greater acceptance the proportion of couples that cohabit rather than marry will surely increase, or at least remain at the same level. Time at last to bow to the inevitable and give them proper rights upon relationship breakdown?

The press release can be found, in Word document format, on the National Centre for Social Research website.

Monday, January 25, 2010

Send two stamps

I just had to share this wonderful Chicago orphanage advertisement circa 1893, found on Boing Boing:
  • Just send two stamps - you will receive your child FREE, on ninety days trial!
  • And no ordinary child either - our children are of SPECIAL PROMISE in intelligence and health!
  • They also all seem to be good looking.
  • Oh - one did have to have his foot straightened, but he walks OK now.
Damn the Children Act, this is the way to deal with homeless children!

Wednesday, January 20, 2010

Families and Relationships Green Paper: Improving the family justice system?

I have been perusing the Government's Families and Relationships Green Paper, which was published today. The interesting part from the point of view of a family lawyer was the section on 'Improving the family justice system', beginning at paragraph 4.29. Essentially, this comprises to the following:
  • A 'comprehensive review of the family justice system', which will 'focus on the management and leadership of the family justice system and what can be done to promote informed settlement and agreement of family law cases outside of the court system' (Para 4.32);
  • In order to ensure that everyone involved in family proceedings is aware of the benefits of mediation as an alternative means of resolving disputes, the Government will promote mediation online and 'will explore other means of reaching families with mediation information earlier' (Para 4.35);
  • The Government will also seek views 'about whether mediation assessment should be made compulsory for parents who go to court to seek to resolve residence or contact disputes, where it is safe to do so' (Para 4.36);
  • 'The Government will work with the Family Mediation Council to build on accreditation schemes for mediators' (how these will differ from existing schemes is not made clear) (Para 4.37);
  • 'The Government will improve the information available for grandparents about the legal and other options available to them in seeking to maintain their relationships with their grandchildren' (Para 4.38); and
  • The Government will remove the requirement for grandparents to obtain the leave of the court before making an application for a contact order (Para 4.39).
I'm not sure what all of this boils down to: a review, the result of which we will not know until next year; possible compulsory mediation, which any family lawyer will tell you is not a panacea, and removing the requirement for grandparents to obtain leave before applying for contact. Hardly revolutionary...

Grandparents targetted by Labour

"Grandparents will today be promised new rights by the Government as the battle to win the "family vote" intensifies in the run-up to the general election." So says The Independent, anticipating the publication today of the Government's Green Paper on families and relationships.

Now, I do not necessarily have any problem with grandparents being 'exempted' from the requirement that they obtain the leave of the court before pursuing contact applications (in my experience leave was almost inevitably given anyway), but I do feel nervous that such a change is being used as part of a strategy to win votes at the general election. The family should not be used as a political football, and any changes to family law should be calmly considered in the cooler post-election atmosphere, preferably in a non-partisan way.

Sunday, January 17, 2010

Mumsnet election plumbs new depths

I'm getting sick of this. No, honestly, I'm feeling nauseous. Not satisfied with telling us how to run every other aspect of our lives, the Government is to send every new father an instruction manual, complete with an explanation of breastfeeding.

No news is bad news

The Times newspaper still can't leave the Marco Pierre White case alone, despite the fact that it is old news. Today it runs its third story of the week on the case, and once again it tells us nothing new. Well, that's not quite true; the story does begin by telling us that White's 20-year-old daughter Letty only found out the truth about his now infamous intercepted letter to her last week, when she read about it in the newspapers (The Times, perhaps?). I don't know where this young woman hides herself, but she must have been about the last person in the country to hear about it. Poor Letty, we are told, broke down in tears when her father spoke to her about it.

The rest of the article does little more than go over the old ground of the case possibly making it easier for one party to hide assets from the other and being bad news for divorce lawyers, who could find themselves liable to the 'wronged' party. Still, at least there is some good news for White's lawyers, who could be in for a big payout with White promising that he will not settle his claim against Withers, no matter how much it costs.

Friday, January 15, 2010

What goes around, doesn't come around

When I was a child I bought a Frisbee. I remember playing with it on family holidays in Wales and Cornwall. In fact, I've still got it somewhere, I think.

An heiress to the Frisbee toy fortune was in the Court of Appeal yesterday, appealing against the decision that she should pay her husband £5 million to cover losses he suffered in the property crash. Lords Justices Thorpe, Wall and Rimer reserved their judgments to a later date. Meanwhile, it is estimated that both parties have spent in excess of £1 million in legal costs to date.

I never thought that my pocket money would end up lining the pockets of fat cat lawyers...

[Image: The Joint Holder Frisbee - definitely nothing like mine!]

Thursday, January 14, 2010

All you ever needed to know...

What does a law blogger do when they can't find anything else to blog about? Why, they do an 'answer the keyword queries that brought recent visitors to this blog' post, of course! So, subject to my usual disclaimer (see sidebar), here goes:

proving cohabitation

Notoriously difficult; you could consider instructing a private investigator, but that can get expensive. However, ask yourself whether you really need to prove that your ex is cohabiting - often, people spend a lot of money on this, only to find that it makes little or no difference to the settlement. Take advice before incurring any expense.

proving nullity

You must either show that the marriage is void (i.e. treated as never having taken place) - see here, or that it is voidable - see here.

how do i write a skeleton argument

Not like this!

calculating divorce settlement formula

There is no formula - we have a discretionary system, whereby the judge may make whatever order he or she considers appropriate to the circumstances of the case.

calculating spousal maintenance

By the same token, there is no formula to calculate spousal maintenance. The amount will depend upon all of the circumstances of the case, in particular the needs of the recipient spouse and the income of the paying spouse.

certificate with regard to reconciliation means

It means not a lot. It is a form that must be filed with the divorce papers if the petitioner is represented by a solicitor - the solicitor certifies whether or not he or she has discussed the possibility of reconciliation with the petitioner.

are divorce rules in need of updating


is a post nup valid in england?

The best answer is 'possibly'. A post-nuptial agreement has been upheld, but the court is not bound to follow them - it depends upon the circumstances.

ex wont provide financial disclosure for court,what happens

The court will require him to provide disclosure, and will take enforcement action against him if he does not.

when can the no delay principle be overlooked in children's cases

The principle is that any delay is likely to prejudice the welfare of the child. It can only be 'overlooked' if the court considers that the delay will not prejudice the welfare of the child.

constructive trust beneficial interest minimum duration of cohabitation

There is no minimum duration of cohabitation. For more information on constructive trusts, see here.

defending a csa liability order

The only 'defence' to the making of a liability order is that you (i.e., the non-resident parent) are not in arrears with payments of child support.

if petitioner is not interested in a clean break,can the respondant [sic] apply on his own?

Yes, either party may request the court to make a clean break order.

how to write up your own consent order for the court in divoce [sic] cases

I wouldn't advise it - drafting anything but the simplest court order is not really something that should be attempted by a non-lawyer.

can i make a claim against a co-respondent in a divorce

Yes, in respect of the costs of the divorce only.

divorce respondent in prison

No problem - you will just need to serve the divorce papers upon them in prison.

can csa payments be backdated

Yes. 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.

dividends subject to child maintenance

Share dividends are ignored when calculating child maintenance, but may be taken into account as a variation - see here.

husband's mistress has monies left in will

You will not be able to make a claim against those monies as part of the divorce settlement, but they may be relevant if your husband is cohabiting with his mistress.

do i get reduced csa if i have a child with new partner

No - this will not affect the amount of child support that you receive.

proving adultery

Adultery is usually proved by an admission from the respondent. If no admission is forthcoming, and if no child has been born to the 'adulterous' relationship, then consider proceeding on the basis of unreasonable behaviour, rather than trying to prove the act of adultery.

what happens when an application is made to the court for a decree absolute in divorce when it has been 18 months since the decree nisi was granted

See here.

how to sow marigolds

Ah, I'm glad you asked! For the answer, see here. (Note the post date.)

adultery solicitors compensation

What, you want their solicitors to pay you compensation for your spouse's adultery?

how to do your own divorce

Ahem, you will find the answer here.

baked beans legal

They were, last time I checked.

irritate district judge

Not a good plan.

And last but not least:

how to f**k your ex up

Isn't that what divorce lawyers are for? Only kidding... honest!

Wednesday, January 13, 2010

White v Withers: Let the truth win out

Well, for whatever reason, it seems that the White v Withers case is back in the news. I was even interviewed about it myself yesterday. Today, barrister Rupert Myers (left) gives his views on the case in the Guardian's Comment is free column, and a lot of sense he talks too. He points out that failure to disclose assets may have far more serious consequences than the breach of privacy involved in 'self-help'. Further, referring to Lord Justice Ward's suggestion that search and seizure warrants should be used to obtain documents, he says that this is a "costly fiction" that "would draw out litigation and result in yet more of the assets on the table going to the lawyers". He concludes: "We should allow for the reasonable inspection of documents during divorce, and shield lawyers with a public interest defence from the unfairness of holding them responsible for the acts of those whose motive is to discover the truth." Well put.

The British Family: Marriage

Further to this post, I have now watched the first episode of The British Family. The theme of this programme (in a series of 4) was marriage, at least marriage from the second world war until the passing of the Divorce Reform Act 1969, more of which later. It was a period of incredible change.

The programme begins by telling us how the war had "torn through the fabric of family life", with the result that there were almost 30,000 divorces in 1946, nearly five times the pre-war figures. Quaintly, the Government responded by putting out radio broadcasts on the BBC urging people to "keep calm and carry on", whatever that meant.

Another response, says the programme, came from the National Marriage Guidance Council (now Relate), which, says presenter Kirsty Young, wanted marriage to "stop being an institution and start being a relationship". (The programme appears to suggest that the Council was formed in 1946, but it was actually founded before the war.) Young has a fascinating, though brief, interview with Joy Ross, one of the Council's untrained volunteers, who tells us that often her first task with couples that came to her was persuading them that they were not failures. "We all have marriage problems", she told them, "even marriage guidance counsellors".

It appears, we are told, that the efforts to preserve marriage were having an effect, as the divorce rates steadied in the late 1950s. This did not last, however, as the divorce rate doubled between 1960 and 1969, despite the legal hurdles then in the way of anyone wanting to dissolve their marriage. We are told of the lengths that people were prepared to go to in order to untie the knot, including pretending to commit adultery so that private detectives could obtain evidence of, for example, a husband being found in bed with another woman.

Eventually, says Young, the law caught up with society and the Divorce Reform Act 1969 was passed, allowing separation as a 'ground' for divorce. Contrary to what I said in my previous post, the programme does explain that two years' separation is required, or five years, if the other party does not consent. What the programme does not tell us, however, is the way in which, since the passing of the Act, unreasonable behaviour has been 'abused' by many with extremely weak allegations against their spouses, effectively doing away with the requirement for two years separation, in many cases.

The Act, of course, opened the floodgates for divorce and another interviewee, Claire Rayner, recalls how people lamented to her how many marriages were now breaking down. She pointed out to them, however, that the idea that because divorce rates used to be very low that meant that everyone was happily married was simply not true. "What they were, she says, "was miserable, but stuck with it - they could do nothing about it." This seems to me to summarise the period perfectly.

You can still watch the programme on iPlayer, here.

Tuesday, January 12, 2010

What are you doing?

Sam Hasler has highlighted what I consider to be a worrying trend: people using Twitter to publicise the difficulties that they are having securing contact with their children. I have two problems with this: firstly, as any family lawyer will tell you, there are always two sides to every story: publicising one side will inevitably give a skewed picture of what is actually happening. Secondly, as Sam points out, it is surely only a matter of time before people start naming names, which will obviously be a disaster for all concerned, especially the children.

Political Football

(Yawn) At the risk of turning this into a political blog, I suppose it is my duty to report that the Labour party is due to unveil its 'Families Green Paper' next week, in an attempt to con you into voting for them help families stay together.

If you are interested, then have a look at this BBC report. Personally, I find it somewhat distasteful that family life is being used for political points-scoring by the main parties ahead of the forthcoming general election. Of course, it would be different if I thought that they genuinely cared about such things, rather than just about saving their political skins. I think I shall go into hibernation until it is all over...


The Times today carries two articles (here and here) on the Marco Pierre White case. I'm not sure why they are running these articles some two and a half months after the event, or why there are two articles not just one. I am also not entirely sure of the point of the articles, as they seem to add nothing to what we already knew. However, I shall not complain, as both articles include contributions from my excellent fellow family law blogger, the ubiquitous Marilyn Stowe.

Monday, January 11, 2010

The British Family

A new series begins today on the BBC. In The British Family Kirsty Young "tells the story of the British family from the end of the Second World War to the present day". Could be interesting. For more information, see this this article in the BBC News magazine (I will forgive their error claiming that fault was removed from divorce by the Divorce Reform Act 1969 - of course, fault is still required unless the parties have been separated for two years).

Sunday, January 10, 2010

Good enough to eat

I'm not sure I know exactly what 'Steampunk' is, but this Steampunk wedding cake, found via Boing Boing, is amazing:

Sunday Review

Three things that caught my eye whilst doing my news update this morning:

In the Daily Mail there is an article by Vince Cable (apparently, he was the acting leader of the Liberal Democrats until the election of Nick Clegg, according to Wikipedia) in which he discusses the debate over whether marriage should be recognised and rewarded by the tax system. For a politician, he talks a lot of sense. He says that he is "deeply sceptical about whether a small financial bribe from the Government will persuade people to take on the commitment of marriage that they otherwise would not, or stay together rather than separate" or even that it is any business of the Government. In any event it seems more plausible, he says, that couples are good parents because they are caring, happy and stable rather than because they are married. Further, rewarding marriage in the tax system can cause great unfairness, such as the abandoned parent who "not only has to struggle with the awful procedures of the Child Support Agency but pays more in tax". I can't argue with that...

In America there has been a lot of discussion about a child abduction case where an American boy was taken to Brazil by his mother and it took nearly six years to secure his return, despite Brazil being a signatory to the Hague Convention. Florida Divorce speculates that only "the adverse impact of Brazil’s conduct on future trade with the US may have propelled Brazil to finally send the boy home". Such failures by countries to meet their obligations under the Convention have prompted one US Congressman to introduce legislation which would create an assistant secretary of state who would report regularly to the president on which countries are complying with the convention and which are not, suggesting sanctions that might be imposed against non-compliant signatories where appropriate. This seems a drastic step, but I'm sure it would be welcomed by many parents who have lost their children to international child abduction.

Lastly, and this has nothing directly to do with family law, the Telegraph reports the disturbing case of Ian Harrison who claims to have been innocent of the driving offence with which he was charged, but who nevertheless pleaded guilty, because he could not afford to take his case to court. An acquitted defendant may recover their costs from central funds. However, since October the amount that can be recovered has been capped to legal aid rates, meaning that a defendant who cannot get legal aid and therefore has to instruct a lawyer at commercial rates has to pay the difference. Mr Harrison was advised that this could cost him more than £2,000, so he decided instead to to accept the £60 fine and three penalty points. Another example of budget cuts denying justice? Oh, and for any lawyer-bashers out there, I know that some solicitors do charge extortionate rates, but most do not, and it is simply not economic for most firms to survive on legal aid rates alone - indeed, legal aid rates often do not even cover expenses.

Saturday, January 09, 2010

The recession: it IS all doom and gloom for those in relationship breakdown

Unfortunately, if you are going through a marriage or relationship breakdown then you are unlikely still to be rich, or at least not as rich as you once were. Two stories in the papers this morning warn of the additional hazards that the recession provides for couples who are breaking up.

Firstly, The Independent tells us what we knew already, i.e. that the recession is forcing couples whose relationship has broken down to continue to live under the same roof, either because they can't afford to move out, or because the house is in negative equity. As I've indicated, this is old news and something that divorce lawyers have had to deal with for some time. The story was prompted by research published this week by housing charity Shelter which found that "nearly a quarter of people – the equivalent of 9.9 million adults - said they or someone they know have had to stay living with their partner because they cannot afford to live on their own". Their survey also indicated that worries about housing costs were adding significant strain to relationships.

Meanwhile, The Times informs us that breaking up is even harder to do in a recession, warning that "anyone who embarks on a marital split in 2010 should prepare for a longer and more acrimonious slog than normal". Nice to know. The recession, it seems, has not only made it more likely that relationships will break down, but has also made it harder to reach an amicable financial settlement. In fact, The Times says that many are delaying settlement until the economy recovers and the value of assets increases, which brings us back to the story in The Independent.

[Image: 'Fuck the recession' gold edition T-shirt by Zazzle - cheap at $2,965.00 each.]

Friday, January 08, 2010

Sham marriages, social networking, alimony arrearages and flibbertigibbets

Coinciding with the news that sham marriages are on the rise (the Telegraph attributes this to the Law Lords throwing out tough Home Office rules to prevent them because of human rights, in July 2008), the BBC ran a piece yesterday looking into how an illegal immigrant may go about obtaining a sham marriage in order to remain in the UK. It didn't take their undercover reporter long to find out...

The BBC also interviewed Mark Rimmer, the superintendent registrar for the London Borough of Brent, regarding sham marriages. He said that if the parties have the right paperwork then he has to marry them. However, whilst filming a Pakistani man and a Lithuanian woman come in. She can't speak English and he can't speak Lithuanian. Unsurprisingly, this raises suspicion and, sure enough, the 'groom' heads for the exit alone, rather than face questioning:

We don't call them 'alimony arrearages' over here, we call them 'maintenance arrears'. Whatever, eighty year-old Joe Iannicelli from Georgia, USA, refused to pay them on principle. Joe was actually divorced no less than thirty-eight years ago, and the arrears now amount to some $68,000. He claims that his ex-wife voided the contract for alimony when she "abandoned" their two sons, then 15 and 16, in the 1970s. Unsurprisingly, this argument did not cut any ice with the judge, who committed Joe to prison for contempt.

Social networking in general, and Facebook in particular, has been blamed for an increasing number of marital breakdowns. However, there is another issue here, one that has been picked up by Daniel Clement at the New York Divorce Report. As he says, the advent of social networking has made breaking up harder to do - now, couples routinely exchange passwords to email or online accounts (both social and financial) which can obviously lead to serious problems upon relationship breakdown. Clearly, at the very least, lawyers should now advise their clients to change all passwords.

Finally, congratulations to Maryland divorce lawyer James J Gross for getting the word 'pettifogger' into one of his letters, something I sadly never achieved in my career. I'm not sure whether James is aware of the alternative definition of "a petty small rate lawyer" (see above). Whatever, he is now looking for the chance to use the word 'flibbertigibbet'...

Thursday, January 07, 2010

Walsh v Singh: A classic cohabitee case

I have been considering the case of Walsh v Singh & Anor [2009] EWHC 3219 (Ch). I don't think that it decides anything new, but I would still recommend that it be read, as it seems to me to be a classic application of the (current) property rules relating to cohabitees.

The parties began cohabiting in 1997. In April 1999 a property was purchased in Mr Singh's sole name. Miss Walsh claimed a 50% beneficial interest (or some other share) in the property under a constructive trust or proprietary estoppel. She did not contribute financially to the purchase price of the property, but said she was promised a half share.

Miss Walsh did make a significant contribution towards the development of the property, and loaned certain sums to Mr Singh. The judge held that her contributions would be sufficient to give rise to a constructive trust or estoppel if the necessary common intention coupled with detrimental reliance existed, or the necessary belief (similarly coupled) in a shared or joint beneficial interest was both held by Miss Walsh and encouraged by Mr Singh. However, he was unable to accept Miss Walsh's evidence that she was promised or that she was encouraged to believe (or did believe) that she would have a 50/50 or indeed any other share in the property at the time of its purchase, or subsequently.

The parties had become engaged in April 2001. The judge found that they stayed engaged until late 2005, and that the engagement ring remained Miss Walsh's throughout, and is still hers, despite her returning it to Mr Singh for resizing.

In the circumstances, Miss Walsh's claim against the property was dismissed, although she was entitled to the repayment of the loans (with interest), and to the return of the engagement ring.

A Medieval System

The Independent this morning informs us that "an overwhelming majority of lawyers have told the Government" that the divorce system must be reformed, to provide for no-fault divorce. I'm not quite sure who these lawyers are or when they told this to the Government, but the report goes on to tell us that: "Lawyers told the consumer law website that families would suffer far less during the separation if the husband and wife did not have to cite unreasonable behaviour or one of the other grounds for a quick divorce."

Correct me if I'm wrong, but this seems to me to be just another in a series of "surveys" undertaken by or on behalf of a business selling legal services, whose real purpose is nothing more than to give publicity to that business.

However, be that as it may there is, of course, a serious point here. As I have stated many times on this blog, the divorce laws are in serious need of reform. The retention of fault in our system is not only anachronistic, it is downright harmful to all involved in divorce, particularly the children. Unfortunately though, the Independent is correct in its assessment that neither of the two main political parties presently supports reform - they are not interested in making difficult decisions, only in winning votes. It seems, therefore, that we will be stuck with a 'medieval' system well into the twenty-first century.

Wednesday, January 06, 2010

We settled the divorce...

Travels with my mouse

I have once again been travelling the intarweb to bring you the latest family law news...

It seems that reality may have put paid to the Tories' plan to mend 'Broken Britain' by giving tax breaks to married couples, as they have realised the obvious truth that a bankrupt country cannot afford to give tax breaks to anyone. Hopefully, this revelation will put paid to the use of marriage as an electioneering football, although I have my doubts. Personally, I am already bored with the election (my vote will be cast to the wind anyway), and I agree wholeheartedly with Charon QC:

The present government, meanwhile, is doing its bit to reduce the national deficit by cutting £23 million from the legal aid budget. I agree with one of the commenters to this report that appeared in the Law Society Gazette before Xmas:
"We are currently watching the entire legal aid system collapse -- but it's death by 1000 cuts, so no one will really notice before it's too late. It might struggle on for another five years -- but I'm taking bets from all comers that it won't be here in 10 years time. The government will have to find some sort of cover for much of the work -- what's the betting it won't be the private sector they turn to -- they will set up another quango and end up paying far more for it."

Meanwhile, in France prominent female psychologist Maryse Vaillant has defended the "right" of husbands to stray now and then from the marital bed, proclaiming that the occasional fling could even be beneficial for a marriage. Sounds good to me. After all, men do need to keep their libido up, as mentioned in this report from Oman, informing us that the rate of divorce in that country "has fallen as a result of a trend in which men are increasingly taking second wives while keeping their first to prevent the break-up of their families". (My thanks to Divorce Saloon for bringing my attention to this story.)

Over in America Kenneth Mitchell has apparently taken not two but three wives, although his second wife, Faye Miller, only found out about it after her therapist suggested she do some "digging" on her husband. She also found out that Mitchell had converted to Islam, and 'married' his third wife at an Islamic ceremony in Toronto. Surprising what you can find out using Google and phone records... (My thanks to Florida Divorce for bringing my attention to this story.)

On a more serious note, and before I leave the subject of Islam, the BBC tells us the story of Yemeni schoolgirl Nujood, who was divorced by the age of 10, having been married to a man of 30 when she was only nine. It seems she has been given a second chance at an independent life of her own - let us hope that she is allowed to take it, although her country's record on women's rights does not fill me with hope...

From the serious, to the frivolous. In a piece of cutting journalism, the Telegraph informs us that actress Rachel Weisz has been voted by readers of Esquire magazine "the woman who men would most like to marry", and what man could argue with that:

And finally, I am pleased to report that BabyBarista has turned his formidable advocacy skills to family law, although the case did not quite proceed as expected...

Monday, January 04, 2010

Lucrative liberation

Today is D-Day. No, not that D-day, but the far more important one when more people commence divorce proceedings than on any other day of the year. Apparently.

I'll leave it to others to speculate as to why so many people decide to start the new year by dissolving their marriage. For now, let us just rejoice at the heavenly sound of solicitors' cash registers ringing up their charges across the country. (Of course, if you want to save yourself a few (hundred) quid, then you could always cut out the middleman and Do Your Own Divorce.)

Sunday, January 03, 2010

The Box Tunnel of Blawg Reviews

I shall call it the Box Tunnel of Blawg Reviews - long and dark. Charon QC excels himself in his latest, and perhaps last, foray into the surreal world that is Blawg Review.

Saturday, January 02, 2010

Divorce joins baked beans on the supermarket shelves

I have received the following Press release from Wikivorce:

Wikivorce, the world's largest divorce support community, is launching, the UK's first divorce supermarket on Monday 4th January 2010.

For the first time divorcing couples will be able to compare on one website a range of options from both the cheap online providers, as well as more traditional family law firms. Prices range from a DIY divorce at £69, up to a full solicitor managed divorce for £249.

DivorceSupermarket logo

The launch of DivorceSupermarket is in response to some key changes in consumer behaviour and in preparation for upcoming changes in the law on the sale of legal services.

Traditionally people have chosen a lawyer by simply walking down the high street and into a local solicitor's office, but the emergence of comparison websites such as and have educated consumers into using the internet to find a better deal.

A recent survey of Wikivorce members found that 2 out of every 5 divorcing couples were dissatisfied with the value for money provided by family lawyers.

The Legal Services Act 2007 often dubbed "Tesco Law" has paved the way for online retailers to sell an ever expanding range of legal services.

A recent Which survey estimates that "75% of consumers would buy legal services from banks/ supermarkets" and it has been estimated that impact of Tesco Law will lead to more than 30% of law firms going out of business.

Ian Rispin, the founder and Managing Director of Wikivorce believes that "those law firms that can adapt and innovate have a promising future, but they need to develop new capabilities in areas such as: online marketing, technology, product management and partnership development".

In answer to criticism that a DivorceSupermarket will encourage people to give up on their failing marriages rather than seek to resolve things, Ian Rispin was quoted as saying "That is like blaming the NHS for encouraging people to have more car accidents - because drivers know that if they do crash, then they have access to good quality medical treatment. Wikivorce is there to pick up the pieces after divorce has become inevitable. We have helped tens of thousands of people who would otherwise have had no obvious source of affordable support. DivorceSupermarket is an extension of that support and offers people choice and good value - I see that as a very good thing."

Friday, January 01, 2010

December Post of the Month

I may not always bestow my Post of the Month trophy upon a family law blog (Charon QC has deservedly received the award no less than five times), but I do try to favour family law blogs, for obvious reasons. Unfortunately, December was a pretty thin month for family law blogging, but there was one post that stood out head and shoulders above the rest.

For the second month running my coveted trophy goes to Marilyn Stowe. In The family law case of the decade: White v White Marilyn tells us that White v White was the most important family law case of the 'Noughties' (and who can argue with that - I don't recall any single case in my entire career having such an impact), and explains why, including looking at case law both before and since. She also gives us her opinion as to the effect of White, and speculates as to future developments. An excellent post, and one that I wish I had written, demonstrating as it does the real value of serious blogging - read it if you've not done so already.