Sunday, October 31, 2010

Damned if they do, damned if they don't

Two contrasting stories in the papers this weekend:

Firstly, Christopher Booker in The Telegraph continued his campaign against the child protection system, using his usual emotive language ('a system which has gone horrifyingly off the rails', 'tearing babies from their mothers' arms', 'a corrupted system', 'this cruel, dishonest and venal system', 'the Frankenstein's monster that Parliament created', etc., etc., etc.). Now, I'm not a social worker and it's a long time since I did child care work anyway, so I'm not going to comment in detail, although I do know enough to say that I'm sure those family law practitioners who do public law work would take great exception to Booker's assertion that parents: "are, all too often, pressured into being represented by lawyers who, again, work regularly for the council, who fail to put their case and who turn out to be just part of the same system".

Why, then, would a system, and everyone involved in it, wish to seize "thousands of children a year from loving homes, for no good reason"? Booker has this covered: the real reason is money. He tells us that foster homes receive £400 a week or £20,000 a year for each child, and that "the vast fostering industry, run by dozens of agencies, often owned by ex-social workers" also receive £20,000 a year for each child they place. As for the lawyers, they are not specifically mentioned, but presumably they are after a cut of the "hundreds of millions of pounds of public money" that fund the industry, i.e. legal aid.

Booker doesn't say how many thousands of children are wrongfully removed each year, but the implication seems to be that it is a few thousand (if it were more, surely he would have said?). For the sake of argument, let us say that it is 3,000. Just this morning Camila Batmanghelidjh, the chief executive of Kids Company, told BBC News that there are 1.5 million children in this country who are being abused or neglected. If this is right, then 3,000 represents just 0.2% of that figure. OK, I know this is not very scientific, but it does perhaps put the size of the problem in perspective, not that I want to make light of it - every error is a tragedy.

The other story is in The Observer today, which picks up on the story in the Gazette this week that child protection experts are concerned that abused children will be at greater risk following the government’s decision not to scrap the controversially high court fees paid by councils in care and supervision cases. An NSPCC spokesman is quoted as saying: "There is a serious risk that fewer cases will now go to court so denying vulnerable children and families justice", which seems fairly obvious to me, particularly given the financial situation in which councils currently find themselves.

So, how do we square these two stories? On the one hand, concerns that a corrupt system is taking children away from their parents for no good reason, and on the other hand concerns that the same system may, through financial constraints, not take children away when there are good reasons. I don't know, but the answer that suggests itself to me is that the system is actually not too bad - it gets a relatively small number of cases wrong (each way), but it get most things right. I'm not saying that we should be complacent - we should always strive for a better system - but calls from the media (and, to their shame, some politicians) to eradicate all errors are, of course, a nonsense - there is no such thing as a perfect system, and never will be.

One thing is certain: as always, those involved in the child protection system will continue to be damned if they do, and damned if they don't.

Friday, October 29, 2010

Homework for parents

We may have parenting classes over here, but a judge in Canada has gone one further. He has ordered a couple involved in a dispute over their children to read three books about parenting in a divorce situation before they return to court in December, and provide proof that they completed the assignment, by the 30th November. They must also write "a one-page summary for each book of one insight that they have gained from it and one strategy, if any, they are prepared to adopt based on it". Explaining the reasoning behind the order Judge David Price said that it: "may improve their ability to communicate and resolve some of the issues that are still troubling them".

How long before we see similar orders over here?

Thursday, October 28, 2010

Robson v Robson: Dividing the carcass of the golden goose

Robson v Robson [2010] EWCA Civ 1171 may ultimately be best remembered for the language used by Lord Justice Ward in his judgment, rather than for any particular point of law. It does, however, throw up some interesting issues.

The facts: As Lord Justice Ward stated at the beginning of his judgment, this is ""a big money case" where the distinguishing feature is that the "big money" was inherited by the husband". The parties were married in 1985. The husband is now 66 and the wife 54. They have two children, a son aged 20, now studying at college, and a daughter aged 17 doing her A' levels. The marriage broke down in 2006. The wife commenced divorce proceedings in September 2007 and decree absolute was granted on 11th February 2010.

The value of the husband's assets totalled £22, 295, 500 and included an estate in Oxfordshire (Kiddington Hall), a Scottish estate, 'development land' and two pension funds. The wife's assets totalled a more modest £343, 500. At first instance, the husband was ordered to pay to the wife a lump sum of £8 million.

In the course of his judgment, Mr Justice Charles found that the parties "were living off the wealth inherited by the husband and in a manner and at a level that focussed on their own enjoyment and sporting passions rather than on preserving the inheritance for their children and future generations", commented that the husband "generously funded his sporting and other interests", and found "that in the later years of the marriage this expenditure became excessive, reckless and perhaps obsessive or compulsive".

The husband sought permission to appeal on the grounds, inter alia, that the judge was wrong to assess the wife's budgetary needs by reference to the standard of living enjoyed by the family before the breakdown of the marriage, where she was complicit in their profligate expenditure of his inherited wealth.

Held: Permission to appeal was granted, and the appeal was allowed. The wife had been "complicit in their prodigality" (paragraph 76), and Mr Justice Charles had been wrong "to allow the wife to live in the same extravagant way as she inappropriately had in days of yore" (paragraph 77). Accordingly, the lump sum payable by the husband was reduced to £7 million, on the basis that Mr Justice Charles had allowed the wife £1 million more than she actually required for her housing needs and her (capitalised) maintenance.

In conclusion Lord Justice Ward stated:
"They must both learn to tighten their belts but that they ought to have done years ago. They lived off the fruit of the land without properly husbanding it. The Hall represented their lifestyle. The Hall has gone. They have by their mutually extravagant lifestyle killed the goose that was capable of laying the golden eggs had they fed her properly. It is pure coincidence – and faintly ironic – that if the proceeds of sale of the Hall ... are about £14 million, then, by a quirk of arithmetic, a lump sum of £7 million represents one half of the carcass of the golden goose that exemplified their way of life. That seems a fair result to me."

Two interesting points:

1. At paragraph 43 Lord Justice ward gave guidance as to how the court should approach the "big money" case where the wealth is inherited, including that inherited wealth should be taken into account, but that it can be "treated differently from wealth accruing as the so-called "marital acquest" from the joint efforts". However, "the more and the longer that wealth has been enjoyed, the less fair it is that it should be ringfenced and excluded from distribution in such a way as to render it unavailable to meet the claimant's financial needs generated by the relationship".

2. Unusually, Lord Justice Ward allowed fresh evidence to be admitted "but with some reluctance and I wish to emphasise that the Court of Appeal will not take kindly to being bombarded with a mass of fresh information as a matter of routine" - paragraph 59.

Postscript: For those who are interested, Mr Robson has apparently sold Kiddington Hall to Jemima Goldsmith, according to the Daily Mail.

Wednesday, October 27, 2010

Lord Chief Justice comments on family law

There's something about having a Lord Chief Justice called 'Lord Judge' that makes me want to write bad poetry:

There once was a judge called 'Judge',
Who thought family law a terrible fudge,
He told the Review
That there's plenty to do,
As so many parents bear a grudge.

Lord chief justice calls for reform of family system - Law Society Gazette.

Tuesday, October 26, 2010

Monday, October 25, 2010

Should marriage be a renewable contract?

Alyssa McDonald in The Sydney Morning Herald today proposes 'making marriage a renewable contract rather than a lifetime promise that's too easily broken'. It's not a new idea - as long ago as 1971 two state legislators in Maryland, USA, proposed the 'renewable marriage'. They called for making marriage a three-year contract, with an option to renew every three years by the mutual consent of both partners, whereas McDonald suggests that marriage certificates expire after 10 years or, for parents, once the youngest child reaches 21, 'at which point the parties will be able to renew, or just call it a day'.

The idea that marriage should not necessarily be for life is intended to fit in with the realities of modern relationships. However, whilst I do like this kind of 'thinking out of the box', I'm not entirely convinced of the benefits of this particular idea. Does it matter that the 'marriage for life' promise (whether express or implicit) is too easily broken? After all, the promise is genuine when it is made.

Even if marriage were to be for a fixed, renewable term, would that make any difference? Obviously, the length of the contract is an issue. However, if a marriage breaks down, then the parties (or at least one of them) are hardly going to want to wait until the next 'expiry date' before getting out, even if that will avoid having to go through the legal process of divorce, unless I suppose that expiry date happens to be imminent.

In any event, dissolving a marriage is not too difficult in most cases, and is going to be even easier if we have a completely no-fault system, as appears likely. Of course, resolving the ancillary issues of arrangements for any dependent children and financial/property matters may not be so straightforward, but these will still have to be resolved if the marriage simply 'expires' (OK, not in McDonald's model), rather than is dissolved.

Or am I just applying 'divorce lawyer thinking' to the matter?

Sunday, October 24, 2010

Belated happy birthday everything!

Bummer, I forgot to celebrate Creation Day yesterday. Oh well, I'll just have a drink today as well instead.

Friday, October 22, 2010

Radmacher knackered.

I had toyed with the idea of doing another post about Radmacher, perhaps giving my opinions on pre-nuptial agreements, but to be perfectly honest, I've read and heard so much on the subject over the last two days, that I'm all 'pre-nupted' out. Besides, it would probably be impossible now to come up with something that hasn't already been said a hundred times, let alone something original. The coverage of Radmacher has been phenomenal (I'm tempted to say 'hysterical'). It's been on the television, in all of the newspapers, magazines, legal journals, blogs etc, with detailed analysis from family law experts covering every conceivable angle. Family Law alone had no fewer than five expert opinions.

All of this frenzy on a subject which is really only of interest to the rich, i.e. those with wealth to protect when they get married (a point made by Marilyn Stowe). Perhaps that says more about us than it does about pre-nuptial agreements.

Thursday, October 21, 2010

What the public think - the survey you've all wanted to see

Not wishing to miss out on the current trend to do a survey about anything and everything (the latest one is here), Family Lore has commissioned a survey of its own. 1000 people were asked: "What do you think of family lawyers?" The answers were revealing:

They're all thieving bastards - 66%

They're self-serving scum - 21%

They're a bunch of wankers - 6%

(Unprintable) - 5%

They're really quite nice people - 2%

1. The survey was carried out by OyYouGuv, two of whose researchers were assaulted after asking the question. They are still recovering in hospital.
2. 2% of those surveyed were family lawyers.

Divorce attorneys Love will tear you apart

I'm not sure whether this is real or not, but either way I still find it amusing:

[Found on Boing Boing.]

Wednesday, October 20, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

... Mr Venal is giving instructions to the cheap labour trainee:

Prenup business on brink of a boom

Radmacher v Granatino: No change

The much-anticipated Supreme Court judgment in Radmacher v Granatino has now been handed down, and the Justices found in favour of heiress Katrin Radmacher.

The facts: The facts of this case should be well known to all, but for those who are unaware of them (where have you been?) they are, briefly, as follows: The husband is French and the wife, who is of substantial wealth, is German. Prior to their marriage they signed a pre-nuptial agreement in Germany (where it was valid), which provided that in the event of dissolution of the marriage neither party was to make a monetary claim against the other in any ancillary proceedings. The parties lived together for the majority of their marriage in London and have two children of whom they share custody. The wife currently resides in Germany, the husband in London. The parties were divorced in this country, and the High Court awarded the husband £5.6 million. The wife appealed and the Court of Appeal allowed her appeal, broadly on the grounds that the High Court had not given sufficient weight to the existence of the agreement, though still providing the husband with some housing and other funds to reflect the shared residence of the children. The husband appealed to the Supreme Court.

The decision: The Supreme Court dismissed the appeal, by a majority of 8 to 1, with only Lady Hale dissenting. The President, Lord Phillips, gave the substantive judgment. He made it clear (at paragraph 7) that:
"There can be no question of this Court altering the principle that it is the Court, and not any prior agreement between the parties, that will determine the appropriate ancillary relief when a marriage comes to an end, for that principle is embodied in the legislation."
The question, therefore, was the weight to be given to the agreement. He identified three issues raised on the facts of this case (paragraph 67):
"a. Were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it?

b. Were there circumstances attending the making of the agreement that enhance the weight that should be accorded to it; the foreign element?

c. Did the circumstances prevailing when the court’s order was made make it fair or just to depart from the agreement?"
The answers to these three questions were: (a) There were no such circumstances (paragraph 117); (b) The foreign element demonstrated the intention of the parties that the agreement should, if possible, be binding upon them (paragraph 108) ; and (c) It is fair that the husband should be held to the agreement and it would be unfair to depart from it (paragraph 123).

For these reasons, the Supreme Court found no error of principle on the part of the Court of Appeal, and therefore dismissed the appeal.

I'm lovin' (it) you

I mentioned the exciting Wedding Package offered by McDonald's in Hong Kong, in the Family Lore Focus Newsletter this week. Now I have a picture of the big event:


Tuesday, October 19, 2010

Singing into the wind

There has certainly been a chorus of warnings about possible changes to the family justice system, in particular the introduction of compulsory mediation, in the spending review and/or the Family Justice Review.

Last Thursday the Law Society Gazette told us that: "Family solicitors have warned that government plans to divert private law disputes over children away from the courts and towards mediation may not lead to child-focused outcomes." Jenny Beck, head of the family team at London firm TV Edwards, is quoted as saying: "Mediation is a voluntary process through which parties can try to reach agreement in relation to arrangements for children. While it is hoped that the adults present focus on prioritising children, I am aware of cases where this sadly doesn’t happen ... If parents can together reach a child-centred solution, then mediation is far preferable to court, but if they cannot, there needs to be state intervention through the courts".

Yesterday Resolution issued a news release which "called for a return to evidence based policymaking on family law and warned against simplistic solutions to the complexities of family breakdown". Chair of the association David Allison is quoted as saying: "Our members recognise that each family needs a process that is right for them – that can be mediation, but might also be collaborative law, parent information and in some cases court. We are deeply concerned that in its hurry to bring about cost-saving reforms, the Government is going to narrow the gateway to court to such an extent that those families who need it cannot access it."

Lucy Reed of Pink Tape has added her voice. She points out that if compulsory mediation is announced this week in advance of the Family Justice Review, then that will rather tend to undermine the purpose and credibility of the Review. She goes on: "You can say that parties must attend mediation, but I doubt that it is realistic to suppose we could enforce that attendance. And you also can’t force parties to agree. If you want to force parties to adhere to a particular arrangement you need a court. Some cases will always need court assistance."

The UK Human Rights Blog takes a similar view: "Mediation has been presented as a cure-all before, notably in the 1999 civil justice reforms. But compulsory pre-court mediation needs willing parties, or it will be reduced to parties spending more money going through the motions in order that they can get into court."

Is anyone in government listening? I doubt it. In fact, it seems clear that the decision has already been made. The temptation to introduce what David Allison calls 'a quick fix solution to the problems facing the family justice system', which will apparently simultaneously achieve substantial financial savings for the Government has been too great. In the long run, however, it may only store up problems for the future. As Lucy Reed warns, without the court parents may "simply carry on their conflict outside of any managed or moderated environment", which may lead to children suffering emotional harm which "will go unchecked until it emerges in behavioural difficulties or underperformance at school or is played out in difficulties with relationships in adult life".

On the other hand, all these voices of doom may be proved wrong. Perhaps compulsory mediation will be the great answer to everything. One thing seems certain: that that proposition is going to be put to the test.

Monday, October 18, 2010

It's a man's world...

It seems that old non-pc adverts are doing the internet rounds again. This is one of my favourites:

Double trouble

It's an age-old problem, at least in some cultures: do you marry the woman you love, or do you marry the woman your family wants you to marry? A Pakistani man thinks he has the answer: marry both - within 24 hours! For all the gory details, see this story, on the BBC.


It seems that David Norgrove, the Chair of the Family Justice Review Panel, has given an interview to The Times. As that august publication is now hidden behind the great paywall of Murdoch, I have not read the interview. However, reports of the interview appear elsewhere, in the (still) free media.

For example, the Telegraph today tells us the now old news that the Review will 'recommend the introduction of a compulsory mediation stage before any financial or custodial dispute is heard in court', and quotes Mr Norgrove as telling The Times that "the family justice system costs more than £1.6 billion, but that nine in every ten cases could be dealt with out of court". Meanwhile however, the Daily Mail today quotes him as saying: "There is a general sense that more cases can and should be devolved from the court-based process. That is the case with 90 per cent of cases now, but 10 per cent is still a lot of cases".

Huh? Isn't 90% the same as 9 out of ten, or have I missed something?

Sunday, October 17, 2010

Speculation is rife

There are two big news stories due this Wednesday, and the Guardian/Observer thinks it has the answers on both.

The first, and most important, story is the Government's spending review, and its effect on legal aid. Yesterday the Guardian claimed that 'leaked documents' show that the Ministry of Justice will lose 30% of its budget in the review, and that as a result legal aid in divorce and family cases will be slashed. Unfortunately, the report is somewhat thin on detail, saying only that "ministers intend to limit the amount of legal aid to people going through complex marital disputes and divorce cases", but this does seem to indicate that earlier speculation that legal aid for ancillary relief and private law children matters will be abolished may not be far wide of the mark. Clearly, as I have said before, access to justice for all is a luxury that we can no longer afford.

The other big story due on Wednesday is, of course, the Supreme Court decision in Radmacher v Granatino. The Observer today seems convinced that the Court will find against the husband, thereby effectively making pre-nuptial agreements legally binding in England and Wales. Whether they have inside information on this one is not stated, but according to Solicitors Journal 'significant differences between the justices' were the reason for the decision being delayed, so it seems that the outcome was a close-run thing. Despite what the Observer says, I shall not, therefore, be betting on whether or not the appeal fails, and if it does what effect that will have upon the legality of pre-nuptial agreements in this country.

Instead, as with the detail of the spending cuts, I shall wait and see.

Friday, October 15, 2010

CMEC employees viewing porn when they should have been collecting maintenance!

You could say that yesterday was not a great day for the Child Maintenance and Enforcement Commission (CMEC). Not only was it confirmed that it will be scrapped (although that other well-known 'quango', the Supreme Court, appears to have been spared, for now) but it also hit the headlines with the disclosure that four members of its staff were sacked after accessing internet pornography, doing online shopping and carrying out unauthorised downloading on work computers.

Tut tut. Looks like manna from heaven for the anti-CMEC brigade. I can hear them crowing now (not that they need to crow any more): "No wonder they were so poor at collecting child maintenance, when they were spending all their time looking at porn!" Hmm, four employees out of a total staff of almost 9,000? If as few as that have been using their computers to view porn, do some shopping or download unauthorised material, then I would say that their record is probably considerably better than most organisations in the country.

Hiding assets is nothing new

Mishcon de Reya seem to be the latest law firm to jump on the do-a-survey-for-publicity bandwagon. This time the survey looked into the issue of spouses hiding assets from each other.

One of the main findings of the survey was that one in ten men would try to hide assets from their partner if getting divorced. Looking back on twenty-five years of practising family law, that figure comes as no surprise to me.

I can recall many cases of husbands (they were invariably the main asset-holders) attempting to hide assets, or hide their true value. This has always happened (irrespective of the White v White 'yardstick of equality of division'), and always will. Self-preservation is simply human nature. Unfortunately, of course, the recent decision in the Tchenguiz v Imerman case is only likely to encourage such behaviour.

Thursday, October 14, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

... not all the news is bad news...

Family LoreCast #22

In a change to our usual formula, this week Natasha and I do not discuss the week's news items. Instead, we talk about the future of family law, in particular no-fault divorce, the presumption of shared parenting, compulsory mediation and legal aid.

You can listen to the LoreCast here.

Wednesday, October 13, 2010

Radmacher v Granatino next Wednesday!

It has now been confirmed: the Supreme Court will hand down its judgment in Radmacher v Granatino next Wednesday, 20th October. Family lawyers up and down the country (but not this one) will be wetting themselves with excitement...

No 'miracle' at Chilean mine

There is only one story in the news today: the rescue of the Chilean miners. It is, of course, excellent news and I hope it continues to a successful conclusion, but it is not the 'miracle' that many, including the President of Chile, are claiming.

There was an amusing article in The Guardian the other day describing how rival churches are vying to claim credit for the 'miracle'. Sorry to disappoint, but praying to non-existent sky-gods, religious delusion and supernatural mumbo-jumbo have nothing to do with the rescue. There is no 'miracle'. What has got us to this point is science: science that calculated where to put the rescue shafts, science that built the drills, science that designed the rescue capsule, science that built the winch that is bringing the miners to the surface and science that is checking their health when they get there.

So, it is scientific knowledge that we should be thanking, and all those scientists throughout history who have brought us that knowledge. And if one of the deluded should say that "God is acting through human ingenuity to rescue these men", the response is simple: "Prove it."

Tuesday, October 12, 2010

Filler post: Your questions answered

What does a law blogger do when he can't think of anything else to write about? Why, answer some of the keyword queries that brought recent visitors to his blog, of course! So, hopefully (and subject to my usual disclaimer - see sidebar) the following will tide the reader over until inspiration strikes again:

romantic misconduct unreasonable behaviour

I assume that this refers to 'romantic misconduct' with another party, where there has been no adultery, or adultery cannot be proved. If so, then yes, that can certainly amount to unreasonable behaviour.

does a shared residence order effect my csa payment

Child support is not affected just by there being a shared residence order, but obviously the number of nights per week that the child stays with each parent can have an effect on the amount.

how long does it take to receive sealed consent order

Good question. It all depends upon how busy the district judges are at that particular court. The amount of time it takes can vary enormously, from a couple of weeks to several months. If the matter is urgent for any reason, then this should be pointed out to the court when the draft order is filed.

should a solicitor help you when filling out form E

Not necessarily. If your finances are straightforward, then you should be able to do it yourself, so long as there are no complex issues, although you may need some advice when answering the question that asks what order or orders you are asking the court to make.

what to do if child support leave you nothing to live on

If the child support assessment was correct, then there is nothing you can do, unless your circumstances have changed since the assessment, in which case ask for a re-assessment. If you think that the assessment was wrong, contact the Child Support Agency, or consider appealing.

divorce costs enforcement proceedings

If you have an order for your ex-spouse to pay the costs of the divorce, then this can be enforced in the same way as any other civil debt, e.g. warrant of execution, attachment of earnings, charging order, third party debt order, etc..

can i make ex husband pay all mortgage with grown up kids

Such an order would be unusual, but could be made, if the court considered it appropriate in the circumstances.

after decree nisi can she change her mind on financial agreement

Yes, if a consent order hasn't been made, setting out the terms of the agreement. However, she may need to show a good reason why the agreement should not be put into effect.

varying a consent order family law

Financial orders can be varied, irrespective of whether or not they are consent orders. However, the court only has limited powers to vary financial orders - see here.

reasons for denying contact

There is no list of reasons for denying contact - it is all a matter of what is best for the child. However, it is quite rare for a court to deny all contact.

does it mean that a marriage never existed if it says void on a legal separation document

Yes, a void marriage is treated as if it had never taken place.

shared parenting agreement and tax credits

Only one household can claim child tax credits. If it cannot be agreed who will claim, the Tax Credit Office will decide who has main responsibility for the child, based upon such things as the number of days the child spends with each parent.

free online lawyer for family matter in UK

I am not aware of any, and would be surprised if you found one. Some solicitors do, however, offer free initial advice, although this normally involves going to them for an interview.

divorce law form a for dismissal purposes

This is used when applying for a financial consent order, to dismiss all other financial/property claims by either party against the other. The form can be found here. It should be completed and headed with the words 'For Dismissal Purposes Only'.

what's the difference between a consent order and court order

Essentially, only that a consent order was made with the agreement of both parties. All orders can be enforced, irrespective of whether they are consent orders.

marital obligations

The law looks at it in terms of 'rights', rather than 'obligations'. Examples of such rights are the right to occupy the matrimonial home and the right to seek maintenance from the other spouse.

formula for spousal maintenance

There is no formula. It will depend upon the needs of the recipient spouse and the ability of the other spouse to pay.

can my wife throw me out after divorce

The simple answer is: not without a court order.

decree absolute set aside

A decree absolute can be set aside, but only in very limited circumstances, such as where it emerges that the court does not have jurisdiction, or where a fundamental irregularity undermines the entire proceedings.

why people would like to become family lawyers

I really don't know. It must be a kind of madness.

Monday, October 11, 2010

Romance is dead #2

A favourite way for some of the bigger firms to promote themselves these days is to commission a survey, preferably about something topical, and then send the results out to the media. The latest such survey comes from Dawsons LLP and, just in advance of the long-awaited Supreme Court decision in Radmacher v Granatino, asks participants whether they would consider entering into a pre-nuptial agreement.

The results, according to this Press Association report, suggest that 44% of 18 to 24-year-olds and 42% of 45 to 54-year-olds would consider them. Personally, I doubt whether we would ever have such numbers entering into pre-nuptial agreements, even if they were to become enforceable, although, as the report says, awareness of them does seem to be increasing. Whether this is a good thing, or whether it just shows that people are more interested in money than romance, is a matter for debate...

Sunday, October 10, 2010

Friday, October 08, 2010

Romance is dead...

If there's one thing you want to be sure of when you get married, it's that your spouse is well endowed (no, I mean financially). A man in Australia thought he had done just that when his wife-to-be told him that she had property worth A$200,000. Unfortunately, after he married her he found out that the property was only worth A$140,000 and had an equity of just A$20,000. So, the man did what any reasonable person would do and applied to have the marriage annulled on the basis that his wife had made false representations to obtain his consent to the marriage. The Queensland Family Court, however, was not impressed and dismissed the application. Shame.

Moral of the story: don't let romance cloud your vision - get those finances checked before you tie the knot!

Thursday, October 07, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

... 'mediation' is a dirty word:

Compulsory mediation: You can take a horse to water...

The Telegraph today has taken up on the indication by Justice Minister Jonathan Djanogly yesterday on the BBC radio Today programme that parents involved in private law children disputes may be refused legal aid unless they attempt mediation first. Djanogly said that: "Too often people in family breakdowns are using court as a first answer when they shouldn’t", and when asked whether the taxpayer should foot the bill for parents who go straight to court answered: "In my view, no."

The idea will, I'm sure, be welcomed, both by those in favour of mediation and, perhaps more importantly, by those who hold the purse strings. However, mediation is not, of course, the panacea that the Government would have you believe. Family mediator Lisa Parkinson has indicated that as many as 70% of mediations are successful (a figure not borne out by my own experience), which still leaves a substantial number of cases that will have to go through the courts.

The 70% figure is, of course, only for voluntary mediations - I suspect that the figure would be considerably lower for compulsory mediations. After all, you can take a horse to water, but you can't make it drink - many of those forced into mediation may simply refuse to engage in the process. Will those people still be refused legal aid because they didn't cooperate? If not then, to use another equine metaphor, that would drive a coach and horses through the system. If so, how do you judge failure to cooperate? Remember, the welfare of children is at stake here.

My other concern is that such an idea will create a two-tier system. It doesn't seem right to me that those who don't need legal aid can go straight to the courts, and those that can't afford to go to court will be forced into mediation, something they may not want to do. Means should not affect access to justice - wasn't that the whole original rationale behind legal aid?

Not mentioned on the Today programme, Mr Djanogly also said that: "There isn't enough knowledge within the court system, and I have to say lawyers, as to the benefits of mediation." A nice sweeping statement that it is easy for a minister to make, and will doubtless be accepted by most of the public. However, mediation has been around for a long time now, and there can hardly be any judge or family lawyer who isn't aware of its benefits, in appropriate cases.

Of course, the whole idea may turn out to be academic if legal aid for private law children disputes is going to be abolished anyway, the approach apparently favoured by Justice Secretary Kenneth Clarke.

Family LoreCast #21

This week Natasha and I discuss the first instalment of Professor Eileen Munro's review of children's social services in England, the High Court's decision that the LSC’s family law legal aid tender exercise is illegal and the Government's decision to axe child benefit for higher-rate taxpayers from 2013.

You can listen to the LoreCast here.

Wednesday, October 06, 2010

The big news...

As I'm sure all readers are aware, the next episode of the Katie Price/Peter Andre soap opera is due to begin in court this week. However, that den of celebrity gossip has the really big story. Eager to get in on the action, they report that the grotesque delightful Ms Price has visited her dentist prior to the court showdown.

Who says that Family Lore doesn't bring you the big news?

A Fresh Start for Resolving Legal Complaints

I have received the following press release:

A Fresh Start for Resolving Legal Complaints

Today, Wednesday 6 October, the
Legal Ombudsman will open for business to help people resolve complaints about lawyers.

This is the first time people can come to an independent and impartial body to help them resolve a legal complaint. The service covers all lawyers, including solicitors, barristers and others (see notes to editors for a full list).

The Ombudsman has official powers to put things right if the service a consumer received from their lawyer was not satisfactory.

The new Legal Ombudsman will also enhance the reputation of the profession and aims to simplify the current consumer complaints system. Consumers can have greater confidence in using legal services because they know they can access an independent body that has specific powers to help. The service is free of charge to consumers.

Chief Ombudsman, Adam Sampson said:

“We know that most of the time, lawyers provide a good service. But sometimes things can go wrong. When they do, people must have access to someone they can have confidence in to put things right. That is our job – to resolve complaints quickly and fairly. We have worked hard to make sure we bring a fresh approach to legal complaints with a focus on justice.”

“We also want to work closely with lawyers and their regulators to raise standards. We want to help prevent complaints and make the legal and justice systems work better”.

Jonathan Djanogly MP, Minister responsible for Legal Services commented:

“The new Legal Ombudsman will make a real difference for people who want to make a complaint about their lawyer.

“The consumer will have a single point of contact, instead of the current confusing situation, and the process will be a smoother one for the legal profession.

“As a lawyer myself I fully understand the vital part this will play in the regulatory system that helps maintain the high standing that our lawyers have around the world.”

Peter Vicary-Smith, CEO Which? said:

“The arrival of the Legal Ombudsman is a welcome step forward for consumers who use legal services. It is hugely important for consumers to have the opportunity to contact an independent 'referee' who looks at both sides of the argument, makes enquiries, asks questions and comes up with a remedy or solution that they believe is fair.

For more information or to speak to an Ombudsman spokesperson please contact:
Alison Robinson, Head of External Affairs on 0121 245 3070 or 07741 035 967.

Monday, October 04, 2010

At the offices of Messrs. Venal & Grabbit, Solicitors...

... Mr Venal has taken to speaking to potential clients through a loud hailer:

Deafness 'can lead to divorce' - The Telegraph, 2nd October.

Big brother is watching you

I've just seen this story, in the Bournemouth Echo. It tells of a father's shock at discovering that the Child Support Agency could see how much money he had available on his credit card. The CSA explain that the information came from a credit reference agency. The father has now paid the £300 he owed, using the credit card.

September Post of the Month

As any regular reader of this blog will well know, I am not a man of God, or of Allah, or of Wodin, or of any other deity (although I quite like the Flying Spaghetti Monster). However, last month I briefly saw the light whilst reading a guest post on Charon QC.

Taking time off from money laundering and the odd exorcism, His Eminence Cardinal Charoni di Tempranillo gave us the benefit of his wisdom on the subject of law in a sermon entitled THE LAW DELUSION. It is a brilliant tour de force, in which he explains the origins of lawyers ("They came in the form of the serpent") and examines the Ten Commandments, and how they form the basis for an entire law industry.

Accordingly, I hope that the Cardinal will find room on his altar for another bauble - my Post of the Month trophy for September.

Sunday, October 03, 2010

Is your wife being screwed by David Beckham?

We're sure you were as shocked as we were to read in the Daily Mail this week about the false allegations made against our national hero David Beckham by an 'acquaintance' of his.

In case you haven't seen the story, the saintly David has been named in a court case over claims of an affair with Shery Shabhani, a 'Hollywood jeweller to the stars'. In connection with her divorce proceedings, Mrs Shabhani alleges that her husband has falsely accused her of having an affair with David. As a result, David has been forced to deny the relationship.

If David had been having a sexual relationship with Mrs Shabhani then that would, of course, have been adultery. Adultery is a ground for divorce.

If you think your wife is being screwed by David Beckham (or, come to that, anyone else), then we at Venal & Grabbit can help. We'll show them the real meaning of being screwed. Forget all that namby-pamby mediation and collaborative law nonsense, we'll take them for every penny!

[This post was sponsored by Messrs. Venal & Grabbit, Solicitors.]

Friday, October 01, 2010

No laughing matter

The Telegraph today reports a case of a stand-up comedian who has won a legal battle to refer to his divorce during his routine, something his ex-wife had tried to stop. You could say that she had tried to gag him from making gags about her. The Telegraph give some examples of the jokes he now intends to make and, judging by them, his audience may wish that she had succeeded.

Law Society v LSC: A hollow victory

Champagne corks may have been popping in Chancery Lane last night, but the success of the Law Society in its challenge to the Legal Services Commission’s family tender process is no more than a small victory in a war that cannot be won.

As the UK Human Rights Blog states, the decision "may only serve to delay the inevitable ... with the system of legal aid under enormous budgetary pressure". They go on: "The LSC may simply redo the tender, correcting the defects identified by the High Court. And the result may be still be to restrict family legal aid significantly."

But that is probably the best scenario. It could be far worse. The UK Human Rights Blog also point out Sir Nicholas Wall's recent prediction that legal aid for private law children proceedings may be abolished. Add to that the earlier report that legal aid is likely to be removed for ancillary relief, and there could be hardly any private law legal aid work left for family lawyers.

Far from toasting victory, legal aid firms should be facing up to a future that may be far grimmer than anyone could have imagined only a few months ago. As for access to justice for all, that is clearly a luxury that we can no longer afford.