Saturday, February 27, 2010

Vote for Dave!


As regular readers will know, politics usually leaves me colder than... well, a really cold thing. However, I read today that Dave Cameroon and his crazy bunch of Torees are promising to make Britain the most family-friendly country in Europe if they win some election-thingy that's coming up in a couple of months. So, everything will be wonderful thereafter: no more broken homes, no more child poverty and, best of all, no more of those awful people cohabitating with one another. Accordingly, we must all vote for Dave!

Short n Sweet

Following the recent decision in White v Withers, Resolution has released to its members some 'Advice on self help'. It is short and to the point, and I shall quote it in full (although hopefully there aren't any family lawyers out there who don't know this already):
·as a general rule your clients should not take original or copy documents from their spouse.

They should only do so if they have substantial concerns that their spouse will not make full and frank financial disclosure and if their lawyer has advised them to do so.

· they should never access or download materials from their spouse's computer - it would probably be a criminal offence to do so.

Obviously, this advice should go with Resolution’s Guide to Good Practice on Disclosure.

Conspiracy theories


Stung by the news that any further opening up of the family courts to the media will, at best, be delayed, The Times today resorts to scaremongering: pregnant women are fleeing abroad en masse to prevent their babies from being taken into care. Yes, I'm sure this is happening up and down the country: just for the hell of it, evil local authorities, backed by the secret family justice system, are threatening to take newborn children into care with no justification whatsoever.

I'm just glad that I got out of this conspiracy when I ceased practising last year.

Friday, February 26, 2010

A justifiable expense?


The other day I received the above leaflet through my letterbox. As you can see, it is from Child Maintenance Options, and contains details of where I can find 'impartial information' about child support. I don't know how much this 'mailshot' cost, but it must have been a fair amount. I can understand such expense being justified when, as with swine flu, the entire population needs to be informed. However where, as here, the vast majority of the recipients of the leaflet will not require any such information, I wonder whether the money could have been better spent. We only heard this week how CMEC is having to process many applications by hand due to a flawed IT system - surely, the cost of this mailshot could have gone towards more resources to process applications? Or am I being too simplistic?

Family LoreCast #4


This week the topics that Natasha and I discuss include the mounting opposition to the proposals to further open up the family courts to the media, a report comparing cohabitation with marriage, the claim by Iain Duncan Smith that broken homes 'damage infant brains', and the continuing problems with the child maintenance IT system.

You can listen to the LoreCast here.

Wednesday, February 24, 2010

Who cares about Cheryl Cole?


It is obviously a national tragedy. Wherever one looks in the media today (Google lists 2,069 news articles as at the time of writing) one is greeted with the not unexpected but still distressing news that the "nation's sweetheart" has decided to jettison her hubby, Cashley Cole.

As we all mourn at the altar of celebrity, our thoughts turn to the unhappy couple: he a poor footballist earning a mere £6.2 million for kicking a leather ball around a field and she an even poorer ersatz pop star who reportedly earned £1.2 million for sitting as a judge on that cringeworthy annual celebration of mediocrity, The X Factor. How will each manage without the other?

Clearly, there is nothing worse happening in the world than this appalling catastrophe - let us just hope that there will be another natural disaster somewhere, so that we can turn our minds to lighter things.

Tuesday, February 23, 2010

The consequences of the adversarial process

I have just read the judgment of Lord Justice Munby in H v H. I do not propose to comment upon the body of the judgment (I'm not sure, in any event, that it tells us much that is new), but rather upon Lord Justice Munby's preliminary observations.

It is, I think, all too common that the work done in preparing and presenting an ancillary relief case is out of all proportion to what is actually required, with both parties and their legal teams expending huge resources on detail of little or no relevance, rather than concentrating upon the (often very few) real issues. Such, it seems, was the case here:

"the reality is that this is and always was a comparatively simple case which has become extended in its scope and protracted in its length almost beyond reason by the forensic enthusiasm with which it has been pursued on both sides."

As a result, the bundles extended to 15 lever arch files, and the trial lasted for 15 days (I dread to think what the costs come to), and Lord Justice Munby commented:

"The skill with which, on both sides, all this effort was deployed was first class; whether the endeavour was really necessary is, perhaps, another matter. But in venturing this observation I emphasise how acutely I am conscious not merely of the priceless advantage of hindsight but also of the forensic experience that the inner realities of a case are often much more apparent to the judge who watches the battle played out before him than to those engaged in the fray – this, after all, is one of the consequences, as also one of the advantages, of the adversarial process."

All of which makes me idly wonder: would we be better served by an inquisitorial process? I have to confess that I have never witnessed an inquisitorial system in action, and nor can I fully envisage how it might work, but if it could help both parties to concentrate their minds upon the issues that are truly relevant, then that would obviously be to the great benefit not just of those involved but also of all others who seek to utilise precious court time.

Delay the Bill

An article in The Times today highlights the increasing concerns of those involved in the family justice system at the proposals to further open up the family courts to the media, contained in the Children, Schools and Families Bill.

The article explains that senior judges, including President of the Family Division Sir Mark Potter, CAFCASS, and groups such as the NSPCC, are worried that the latest reforms, which will allow media reports on evidence and naming of witnesses, would lead to disclosure of sensitive details and would put the privacy of children and their families at risk. It is not surprising that The Times is concerned about this, as they have, as the article points out, been carrying out a long campaign to open up the courts (the article complains that the original reforms have 'proved something of a damp squib', without these further reforms).

Predictably, the commenters to the article can smell a conspiracy by judges, lawyers and others involved in the system aimed at thwarting further reform, and can see no reason for the courts not to be completely open. However, most of those commenters appear to have the usual axe to grind against the system because they perceive that it has failed them. I hate to disappoint, but there is no conspiracy (why should there be?) - the concerns that have been expressed are to do entirely with protecting children, and it is no coincidence that they are echoed by groups dedicated to the welfare of children, such as the NSPCC.

As I've made clear here many times previously, I do not believe that a brick wall should be erected against all further reform in this area, just that any reform should be given proper and careful consideration, rather than just rushed into headlong, in order to appease those who shout the loudest. Hopefully, therefore, the opposition to the Bill will ensure that it is delayed until after the election.

* * * * *

UPDATE: As reported by Family Law Newswatch, it appears that the Bill has now been delayed.

Monday, February 22, 2010

Apologia


Apologies for the lack of posting around here for the last few days, but I've been just a little busy, with work of a physical nature (a marathon 4-day clearing and cleaning session). In fact, I'm so kn*ackered that it feels like I've never worked so hard in my life, although more likely it's just that I'm getting too old for such exertions. My body aches in places I'd long forgotten about, and my fingers are so stiff from scrubbing that they can hardly move across this keyboard. I understand that physical exercise is supposed to be good for the soul (whatever that means), but it certainly wasn't good for my back. Anyhow, all is now done and service should shortly return to normal...

Apologies also for not getting my Newsletter out today, for the same reason. I shall ensure it goes out tomorrow.

Finally, apologies to regular commenters for turning on comment moderation again, but I've had one spam comment too many recently...

Thursday, February 18, 2010

Family LoreCast #3


This week Natasha and I discuss the advertisement campaign to tackle teenage domestic violence, the case of Doctor A & Ors v Ward & Anor and the issue of professional anonymity, NAPO's criticisms of Cafcass and the recent increase in the number of family disputes. We also have a bit of fun at the end of the podcast...

You can listen to the LoreCast here.

Tuesday, February 16, 2010

Keep taking the tablets...

That great political UK law blogger Charon QC has revealed that I took some of his Viagra for Bloggers pills before I wrote my last post. Now that my secret is out, I thought I would down another dose and continue in a similar vein...

I begin with the news that the Houses of Parliament will be available as a wedding venue to members of the public for the first time. Now, seeing as this is the building in which our elected and unelected 'betters' commit their acts of lunacy in our name, I would not have thought that it would be the most auspicious place to commence a matrimonial union. Can you imagine coming out of your nuptials and bumping into Brown or Cameroon? I defy anyone to consummate their marriage after that trauma...

Returning to the subject of the marriage of Mr and Mrs Ex-England Captain, I was pleased to see that they have climbed to third in the table... of who will divorce first, leaping ahead of the previous league leaders Katie Price and Alex Reid. In runners-up spot are that great lover Tiger Woods and another wife who appears to be standing by her man's wallet, Elin Nordegren. However, top of the league are that other overpaid ball-kicker and his talentless wife, Ashley and Cheryl Cole. Those two look like they are definitely worth a punt for being the league champions this season.

Lastly, I must end this post with some sad news. Apparently, that great philanthropist and all-round wonderful person Heather Mills faces a life of penury, having spent most of the £24.3 million divorce settlement that she received from ex-hubby Sir Paul McGullible. What a shame, never mind.

Monday, February 15, 2010

Dear Mrs Terry, allegedly

Dear Mrs Terry,

Like most people with more than one grey cell in their head I did not believe for one moment the photographs of you kissing and making up with your husband, John. After all, everything is staged these days, and we should believe nothing we see or read in the media, such as crocodile tears from leaders of political parties.

You have, of course, made an excellent decision in staying married to your husband's wallet. As a divorce lawyer (and as someone who cares not a jot whether England win some silly cup this summer), my advice to you is to stay with the rat him until his overpaid football career comes to an end, and then divorce him, taking him for every penny. That way, you will be able to keep the WAG designer lifestyle to which you have become accustomed.

If you would like any further advice I am, of course, available to take your money advise you.

Yours sincerely,

John Bolch
Solicitor of the Supreme Court

Sunday, February 14, 2010

Sunday Review - Valentine's Day Edition


Inspired by that old romantic Charon QC, I thought I would do a special edition of my (very) occasional Sunday Review for that most important occasion for all (future) family lawyers, Valentine's Day.

The Observer enters the spirit with a lover's guide to the legal effects of the alternative answers to the question that will hopefully surely be posed by many today: "Will you marry me?" Excellent - you don't want to reply to that question without being fully informed.

Love was clearly in the air for Duncan Pell when he ran off with Maryna Borysenko, a Ukrainian half his age. Whether his wife Sara was upset to see him go is not clear, but she is certainly upset that she can't divorce him in this country, a decision that could cost her a share of his £1.2 million pension.

A love child is the subject of this important report in the News of the World today, telling us how the husband of Z-list 'celebrity' Kerry Katona (I had to Google her to find out who she was) hid from two child support investigators who called at their home to quiz him about his income. Apparently, for the last 18 months hubby has been 'avoiding' paying maintenance for his 4 year-old son by a previous relationship.

Finally, some sensible advice for women who answered the aforementioned question in the affirmative. The Rev Angus MacLeay, vicar of St Nicholas Church, Sevenoaks, Kent has, quite rightly, advised wives in his congregation to “submit to their husbands in everything”. Something tells me that this could be good news for divorce lawyers in the Sevenoaks area...

Friday, February 12, 2010

Family LoreCast #2

This week Natasha and I discuss various topical family law matters, including delays in the family courts, draft guidance to the forthcoming Private Law Practice Direction, possible review of Payne v Payne and Baroness Deech's proposal that grandparents be remunerated for the free childcare that they provide. Oh, and there is a little surprise in store for me at the end...

You can listen to the LoreCast here.

How to divide property


My thanks to the Family Law Prof Blog for bringing my attention to an excellent new way of dividing property between divorcing spouses. As part of their settlement agreement, actress Kate Walsh (above) and her ex-husband agreed: "One-half of the community property furniture and artwork to be divided by alternating picks after the flip of a coin to determine who will pick first." Sounds very civilised to me.

The agreement, in PDF form, can be found here.

Valuing Contributions, a search for a solution for family law

Just a quick post to mention a PhD research project at the University of Exeter, which will look at financial provision on relationship breakdown for married couples, unmarried couples and civil partners - a subject close to my heart, and very much in need of consideration and, hopefully, reform. The project is looking for family law solicitors, barristers and judges to take part in a telephone interview. I have already offered my services, and if you are interested, details can be found here.

Thursday, February 11, 2010

Madness


I know that looks aren't everything, but what kind of madness is it that persuades one person to marry another without even seeing their face?

Wednesday, February 10, 2010

Today I bury my father


My father passed away on the 18th January. He will be buried today. A strange feeling.

As can be seen from the picture, I followed my father into the law. I did not, however, hold that against him. The notice, which used to hang just inside the entrance to the court at the Old Town Hall, Gravesend, was presented to him when he retired in 1986.

Goodbye, Dad.

Tuesday, February 09, 2010

Divorce Statistics Show Need for Reform of Family Law

I have received the following news release from Latimer Hinks:

Family law expert Judith Middleton, of Latimer Hinks Solicitors, today backed calls for divorce law reform in England and Wales after newly released statistics highlighted the flaws of a “blame centred” divorce process.

The latest figures released by the Office for National Statistics show that behaviour and adultery were cited in the vast majority of divorces.

In 2008, of all decrees awarded to one partner (rather than jointly to both), 67 per cent were awarded to the wife. In more than half of the cases where the divorce was granted to the wife, the husband’s behaviour was the fact proven. Of the divorces granted to the husband, the most common fact proven was the wife’s behaviour (34 per cent of cases).

Resolution, the national family lawyers association, says that this is because couples cannot currently get a divorce without having to blame one another for unreasonable behaviour or adultery unless they wait for two years.

“Family break ups are a sad fact of modern life”, said Judith Middleton, a Partner at Latimer Hinks, who is also Resolution’s Tees Valley spokesperson.

“With one in three children experiencing the breakup of their parents’ relationship before their 16th birthday, it’s essential that conflict is kept to a minimum when families separate. But, as these figures show, the present system encourages mud-slinging and blame.

“At the moment couples not wanting to blame one another have to wait two years before they can get a divorce. But for many, waiting two years to sort out their finances rules out this option.”

Resolution is calling for a new system whereby couples can divorce on the grounds of “irretrievable breakdown” of their marriage with a maximum waiting period of six months.

Judith Middleton added: “We urgently need to replace this blame centred divorce process with a civilised process for a civilised society.”

DIY Divorce: Do away with the lawyers?


I posted the other day about divorce reform, putting the case for no-fault divorce. How about no-lawyer divorce?

My book Do Your Own Divorce is based on the proposition that it is possible for a reasonably competent person to deal with their own divorce, within the framework of the present divorce system. However, as I point out in the book, there are limits to what a party should attempt without a lawyer, but should it be like this? In fact, should lawyers (and, come to that, courts) be involved in divorce at all?

The idea for this post came from a read of the Terms of Reference for the upcoming Family Justice Review. The review will not, of course, cover reform of divorce law. However, it has been specifically charged with examining options for introducing more inquisitorial elements into the family justice system, and whether there are areas of family work which could be dealt with more simply and effectively via an administrative, rather than court-based process.

I can certainly see the scope for doing away with the current adversarial system and replacing it with an inquisitorial system. Many other countries have inquistorial systems, after all. However, that does not do away with the lawyers, or the courts.

An administrative process could, though.

What form would such a process take? I don't think that it is difficult to imagine a purely administrative process to deal with the divorce itself, but what about sorting out the financial/property settlement and arrangements for children?

I don't see a problem where matters are capable of agreement: the parties would agree terms in out-of-court mediation and any agreement could be recorded by a central agency (although there may be argument over the wording of the agreement). The problem, of course, comes where an agreement is not possible: the matter has to be decided somehow.

With regard to financial/property matters, the only answer that I can see is a formulaic approach: all settlements are reached by reference to a formula. That could certainly do away with the need for courts (and lawyers to argue matters), but could we come up with a formula that would achieve a reasonably fair result in all cases? Possibly.

With regard to children, it is more difficult: you can't sacrifice the welfare of a child to the whims of a rigid formula. Frankly, my stream of ideas that this post represents runs dry at this point - I can't see a way to bring recalcitrant parents in line without courts, although no doubt there are others out there who can (I would be very interested to hear from you).

There is, of course, one last point: even if an administrative settlement is possible, what if one party refuses to comply with it? How can compliance be enforced without the use of courts, and those awful lawyers?

Monday, February 08, 2010

One year of the Family Lore Focus Newsletter


Time flies when you're having fun. I find it hard to believe, but I've now been producing the Family Lore Focus Newsletter for a whole year.

For those who don't know, the Newsletter is a free weekly email that will update you on everything that has happened in family law in England and Wales during that week, including news, reported cases, statutes, statutory instruments, practice directions, articles, podcasts and UK family law blogs. It is still the only email updater that provides a comprehensive update from many sources, including newspapers and other periodicals, Bailii, the Home Office, the Ministry of Justice, UK Parliament, Resolution, Family Law Week, Family Law Newswatch, Weekly Law Reports and UK family law blogs.

If you would like to subscribe to this free service, click here. All that is required is your name and email address (which will not be used for any other purpose, without your permission).

Saturday, February 06, 2010

Fun and games ahead for family legal aid


This week Legal Aid Minister Willy Bach announced that the government will tighten the rules for civil legal aid, with the aim of ensuring "that fraudsters are uncovered at an early stage". One of the changes will mean that before legal aid is granted in a divorce or child contact dispute, the other party to the dispute "will be given an opportunity to provide evidence if the applicant is financially ineligible for legal aid".

Oh, this will really be fun. Not only will it inevitably cause further delays while one party waits for their legal aid application to be processed, it will no doubt be seized upon by those intent on doing everything they can to deny the other party the advantage of legal aid. After all, having legal aid can be a serious advantage in many cases, where the other party's means are too much for them to be eligible for legal aid and too little for them to afford full private representation: the party who has legal aid can run up legal costs with impunity, especially if they have no contribution to pay and the legal aid charge will not apply, as in children disputes. In the worst case, this can be just like the scenario where one party has unlimited resources, and can therefore escalate the costs to price the other party out of the litigation.

So, we can look forward to ex-partners of legal aid applicants bombarding the Legal Services Commission with details of 'hidden' bank accounts, surreptitious earnings and assets squirrelled away. In fact, entire ancillary relief applications could play out in the communications between the parties and the LSC. This, of course, will not only add massively to the delay but will also add massively to the animosity between the parties - but don't worry, the parties will still be willing to resolve their dispute through mediation, that flagship of government reform to the family justice system. My arse they will.

As the MoJ points out, it has always been possible for the other party to inform the LSC that they have evidence to suggest that the legally-aided party may not in fact be eligible. I recall this scenario occurring on a few occasions during my career, both when I was acting for the legally-aide party and when I was acting for the other party. However, such challenges were made after legal aid had been granted (often long after), and my experience was more often than not that the LSC (or their predecessors) were not particularly interested.

The new rules will not apply to domestic violence cases or other emergency applications, but I can envisage many instances where the party applying for legal aid will be put at a serious disadvantage by the delay, and will very possibly have to represent themselves in the early stages of any court proceedings. Still, that will save the legal aid budget a fair bit - after all, saving money is the whole point of these changes.

Friday, February 05, 2010

Family LoreCast #1

Today Natasha Phillips (of Divorce Manual and Researching Reform) and I begin a new project: LoreCast, a weekly series of podcasts discussing family law news. This week's topics include the Families and Relationships Green Paper, the divorce rate drop, children and media access to the courts, forced marriage concerns and the recent case of Re S. You can listen to the LoreCast here.

When is a gift not a gift?


It is a very common scenario that parents give money to their child and son/daughter-in-law, to help them set up home together. Obviously, such payments can give rise to serious conflict if the child's marriage should fail. In the absence of evidence to the contrary, the payments are usually considered to be unconditional gifts rather than loans, or gifts dependent upon the couple staying together, and are therefore irrecoverable by the parents. The money (or the asset that the money was used to purchase) therefore falls into the pot, to be divided between the divorcing couple.

However, this is not how a case in Germany was decided yesterday.

The Federal Court of Justice in Berlin Karlsruhe ordered a man who kept the matrimonial home after divorce to repay the sum of of €29,000, which had been given to him and his wife by his in-laws to help them purchase the property. Obviously, the case could open the floodgates of litigation, with in-laws across Germany attempting to recover such gifts.

The rationale for the decision was that the “contractual basis” of such gifts depended on the in-laws’ child being able to enjoy it, and that basis no longer applied after a divorce. The judges did, however, say that: “If the child benefits from the gift for a long period of time (for example if the couple lives together in a house donated by the in-laws), then only a part of the gift must be paid back” - to avoid this, the parents would have to only offer the gift to their child.

This decision is not, of course, binding in this country but it is interesting nevertheless. Could it be an indication of things to come over here?

Thursday, February 04, 2010

Do NOT read this book


Do NOT read this book. It is a wicked book designed solely for keeping poor hungry divorce lawyers out of business. Forget the route to a lasting marriage, and just make sure you know the route to your nearest divorce lawyer. Thank you.

Divorce: The REAL news

Every day I do a news update on Family Lore Focus. Now, this being a serious legal news service, I naturally have to be a little discerning about what stories to include. Well, today I thought I would do a post here about some current divorce stories that were not included - I will leave it for the reader to decide why they were not.

We start (where else) with Katie Price (or should that be Jordan, or should it now be Reid?). For some reason that now escapes me, I omitted to mention her recent nuptials to somebody called Alex Reid in Las Vegas, much as this brought joy to tabloid newspapers everywhere the happy couple. I will, however, now mention that bookies are apparently now taking bets on the timing of their divorce. William Hill are giving odds of 10/1 that they will announce their separation by the end of the month, with odds lengthening to 12/1 if they make it to March. A spokesman for the betting company said: "The speed of their marriage has caught us by surprise but the odds suggest that the marriage could be quite speedy too". Excellent stuff.

Moving to America, we have the unusual situation of a judge giving a woman six months to divorce. He didn't, however, specify which of her two husbands she should divorce. You see, Lorri Freesland omitted to divorce husband number one before she married husband number two. Judge M. Richard Knoblock (why don't our judges over here have names like that?) sentenced her to 15 days in jail and one year of probation for bigamy.

Lastly, he or she may consider themselves to be the unluckiest divorce lawyer in the world. Certainly, their estimated net profit for this year has just taken a severe nose-dive. I am talking of course of Elin Nordegren's Orlando divorce attorney, who has apparently just been dropped, as Tiger Woods' wife has reportedly decided to attempt to save her marriage, rather than proceed with a divorce. I wonder what are the odds on her succeeding...

Wednesday, February 03, 2010

Will this country ever have a modern divorce law?


The calls for reform of our divorce law are going out again (see, for example, here), but there is little to suggest that they will be any less futile than previous recent attempts to stir the Government into action in this important but fraught area.

It is generally accepted amongst divorce lawyers that the current fault-based system, designed more than 40 years ago, is no longer appropriate in the twenty-first century, and often makes divorce unnecessarily more painful than it need be - see, for example, this letter that appeared in the Law Society's Gazette last week. The writer of that letter pointed out that the current law encourages couples to issue petitions on the basis of the other party's unreasonable behaviour, rather than wait for two years' separation. As he says, this apportionment of blame causes ill-feeling, but it can also bring the law into disrepute, with couples 'manufacturing' behaviour particulars in circumstances which Parliament never envisaged would amount to unreasonable behaviour.

So, what is to be done? Well, first of all I want to say what is not to be done - we want no return to the abortive Family Law Act 1996, which wasted a rare opportunity for reform by making such a mess of it that at one seminar I attended at the time the expert speaker admitted that even he did not understand how Parliament intended the new system to work. Instead, I favour something along the lines suggested by Resolution which proposes that couples not wanting to prove adultery or unreasonable behaviour can divorce on the grounds of “irretrievable breakdown” of their marriage after a waiting period of six months. I realise that conservative readers will consider that this will de-value marriage, but my experience was that parties very rarely chose to dissolve their marriages lightly, and I can see no value in forcing unhappy couples to remain married for another eighteen months, at least.

Unfortunately, there seems little chance of any such reform in the foreseeable future. A lot has been said about family law by politicians recently, but none appear willing or brave enough to pick up the poisoned chalice of divorce reform. I did look at the Terms of Reference of the recently-announced family justice review (more in hope than expectation), to see if those terms could be generously interpreted to include a review of divorce law itself, but alas not. The terms do say a lot about mediation and minimising conflict, but nothing about the divorce laws which are often the cause of much of that conflict, and which sit so strangely with the best modern thinking as to how to deal with relationship breakdown.

Will this country ever have a modern divorce law (or ever again, assuming you consider it ever has done)? I fear I am not optimistic, but we must not stop calling for one.

Tuesday, February 02, 2010

Monday, February 01, 2010

J v J: A summary ...and a suggestion

I have been working my way through the mammoth (484 paragraphs plus chronology) judgment of Mr Justice Charles in J v J [2009] EWHC 2654 (Fam). He begins the judgment by apologising to the reader for its length, which he says "flows from the way in which the factual disputes were prepared and presented and the general points that I have decided to make in that context".

Bear with me...

The Facts
The parties were married in June 1996. There were no children of the marriage, but the wife had a daughter by her first marriage, now aged 15. The parties separated in January 2006 and later that year the wife commenced divorce proceedings. Shortly thereafter the husband issued an application for ancillary relief.

When the case first came on for hearing in March 2009, Mr Justice Charles took the view that it was not then ready for trial on a central dispute of fact, namely that the wife had undisclosed substantial assets or ready access to such assets. Accordingly, he adjourned the hearing and ordered further disclosure in respect of that central dispute. Further, "in an attempt to focus the minds of the parties on basic aspects of the preparation of a case for trial, namely the identification of (a) the issues, (b) the facts that were agreed and (c) the facts that were in dispute, and thus the evidence that was needed to prove them, he directed that each party file a statement setting out, inter alia, the findings of fact that each party will ask the court to make and the facts upon which those findings should be made.

The Issues
Having outlined the background to the case, Mr Justice Charles then spent considerable time dealing with the evidence (and shortcomings in evidence), in particular that relating to two 'headline issues of fact': the husband's allegation that the wife had, or had access to, substantial wealth, and the wife's allegation that the husband had misrepresented the value of his company, and had failed to disclose that a process was in progress with a view to selling his shares in the company.

The Law
Mr Justice Charles then spends some 137 paragraphs setting out a pretty thorough summary of the law on ancillary relief, beginning with the 'general starting point', where he found (at paragraph 288) that "the following propositions can now be stated with some certainty":

i) Fairness is the objective.

ii) The distribution of assets between the parties should be effected on a principled and not on an arbitrary basis.

iii) The starting point is the financial position of the parties and s. 25 MCA 1973. This appears for example at paragraph 67 of the judgment of Sir Mark Potter P in Charman v Charman [2007] 1 FLR 1246 (Charman (No 4)) where he says:

“… the starting point of every inquiry in an application of ancillary relief is the financial position of the parties. The inquiry is always in two stages, namely computation and distribution;”

iv) The House of Lords in White v White [2001] AC 596 and Miller v Miller and McFarlane v McFarlane [2006] 2 AC 618 has given guidance as to the approach and principles to be applied in the exercise of the statutory discretion conferred by the MCA 1973.

v) That guidance makes it clear that the court is to have regard to, and apply, the relevant statutory provisions.

vi) In doing so the three main principles that inform the second stage of the enquiry (i.e. distribution), and thus the reasoning to be applied in determining on a principled basis applying the statute what is a fair result, are need (generously interpreted), compensation, and sharing.

vii) The source of assets is relevant.

He found that the compensation principle did not apply in this case, but that the other two principles (needs and sharing) did.

The Decision
Mr Justice Charles assessed the wife's needs at £150,000 per annum, which he capitalised into a lump sum of £4.2 million.

As to sharing: "in my view any departure from equality within the sharing principle for good reason in respect of the assets subject to the s. 25 exercise has to be based on (a) pre-acquired or gifted assets and/or (b) the increase in value of the company after separation". On this basis, he found that the sharing principle gave the wife £5.424 million.

He then compared the two outcomes and concluded that a fair result was that the wife should have an award of £5 million.

'General comments for consideration by the profession'
After giving his decision, Mr Justice Charles set out some 'general comments for consideration by the profession', in which he invited the profession "carefully to consider individually, and as a specialist group, whether they should review and change their general approach to the preparation and presentation of “big money” cases". His reason for doing so was that in this and three other cases that he had recently dealt with "there were significant flaws in the results of their preparation and presentation". He said:
"At the heart of the flaws I have identified in the cases mentioned is the point that in my view there have been failures to properly identify the issues and, by reference to them, properly to identify (a) the findings the court is being invited to make and the reasons why they are relevant, (b) the facts and matters the court is being asked to find as the basis for those findings and (c) the evidence that is needed to achieve these goals."
To address this, he proposes that where appropriate (i.e. in "big money" cases) the existing ancillary relief procedure be supplemented by "an exchange of documents identifying the building blocks of each side’s case, particularly when there are disputes of fact and, even more so, if allegations of dishonesty are being advanced". This might take place before the FDR, and certainly after a failed FDR.

January Post of the Month

The big family law news of January was the publication of the Families and Relationships Green Paper, with its proposal of a 'comprehensive review of the family justice system', and other reforms. I posted about this myself, but someone else wrote a post that was so much better than mine.

I guess one yardstick for a blogging award is: "I wish I had written that". Well, this was my reaction when I read Reformed Meat, by Pink Tape, my Post of the Month for January. The post provides a complete reality check for the proposals in the Green Paper, making them seem what they probably are: no more than another piece of government spin. Take, for example, the Green Paper's emphasis on mediation: "one might get the impression from reading the press releases that the alternative of mediation is something that is practically unheard of", says Pink Tape, before going on to explain that mediation is, in fact, already playing a major role in resolving disputes (and has been doing so for many years) - it is not some new idea that the clever government has just thought up. Nor, however, is it a panacea: "Does the Government secretly hope that if they stick a few adverts for mediation on direct.gov.uk that all private law cases will be magically diverted from the court system and hey presto the LSC and CAFCASS budgets can be slashed by half?" She asks.

However, Pink Tape saves her best for the much-heralded vote-winner of making it easier for grandparents to apply for contact orders. She points out how strangely this sits with the other proposals, which are aimed at getting people out of the courts, and reminds us that, far from being the wronged saints the government would have us believe, "unfortunately some grandparents really do their best to foment discontent and actually ratchet up the disharmony".

Lastly, Pink Tape does accept that the terms of reference for the review mean that it could deal with the system's biggest (and rapidly worsening) problems of lack of resources and (consequent) delay, but:
"...goodness only knows what state the system will be in by the time the review report sees the light of day. I’d bet that some of my clients will still be crawling through the system by the time that happens."
... I for one will not be taking her up on that bet.