Sunday, January 30, 2011

"In years to come, they will be a timeless memento of a magical wedding day."

"To celebrate the engagement of Prince William of Wales to Ms. Catherine Elizabeth Middleton, Crown Jewels Condoms of Distinction has commissioned a unique heritage edition Royal Wedding Souvenir boîte de capotes."

There is nothing that I could possibly add to this story.

Saturday, January 29, 2011

The Great Outdoors

Enough of the law. Here's something for the weekend, particularly for those who, like me, enjoy the great outdoors but are too lazy busy to actually get out there:

Judicial criticisms

Further to my last post, the Jones decision also raised a couple of other interesting points, both of which have been reported elsewhere.

Firstly, Joshua Rosenberg has pointed out the Court of Appeal's criticisms of Mr Justice Charles, who is apparently "the most appealed-against judge in the High Court Family Division and the one whose judgments are overturned the most". Lord Justice Wilson said that he had spent days trying to understand the 484-paragraph judgment delivered by Mr Justice Charles, and quoted barrister Ashley Murray who had said in Family Law:
"There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles."

To which Lord Justice Wilson commented: "Mr Murray's introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite." Excellent stuff.

Secondly, Sir Nicholas Wall P in his supporting judgment made a point that I have made on Family Lore many times, and that has been picked up by Bloomberg. He said (at paragraph 69):
"...it seems to me unfortunate that our law of ancillary relief should be largely dictated by cases which bear no resemblance to the ordinary lives of most divorcing couples and to the average case heard, day in and day out, by district judges up and down the country. The sums of money – including the costs - involved in this case are well beyond the experience and even the contemplation of most people. Whether the wife has £5 or £8 million, she will still be a very rich woman and the application of the so called "sharing" and "needs" principles may look very different in cases where the latter predominates and the parties' assets are a tiny percentage of those encountered here."

Well said - as someone who spent his career acting for 'ordinary' clients of 'average' means, these words strike a particular chord, especially when I consider the amount of time I spent at seminars and elsewhere studying the intricacies of the latest decisions, an exercise that often seemed utterly academic.

Another big-money case reported yesterday was also the subject of judicial criticism, with some similarity. In Goldstone v Goldstone & Ors [2011] EWCA Civ 39 Lord Justice Thorpe quoted Hedley J in the court below, who had "summarised the litigation in vivid language" thus (at paragraph 42):
"1. This case is about whether Sonia Jayne Goldstone (the wife) should receive from Sampson Robert Goldstone (the husband) a sum of around £4 million or one around £11 million (or something in between) by way of ancillary relief in divorce. This issue has generated prodigious litigation involving so far five judges in the Division having made substantive orders which has brought the case but into the forensic foothills. In the future there lies a two day disclosure hearing, a ten day preliminary issue hearing and a seven day final hearing with who knows what beyond that in terms of appeal and enforcement.

2. The three days that have been expended before me have been part of the foothills skirmishing. In argument presented by three eminent Queens Counsel I have been conducted through six lever arch files of documents, two lever arch files of authorities, all supplemented by other documents as the arguments unfolded. In addition we consulted Rayden and Books both White and Red. In the fulsome erudition to which I have been treated no stone has been left unturned; indeed I occasionally wondered if stones appeared in the way simply for the purpose of being turned. I have throughout the argument sensed (in my innocence in these recondite areas) that the essential issues may not be all that complex notwithstanding the learning that has been generated."

Lord Justice Thorpe continued: "I share his concerns. In this court I notice that the richer the family the more imposing becomes the litigation team. They strive not only with great skill but also with great extension of all conceivably relevant issues. The bills incurred by the families mount to shocking summits, even if the totals remain a relatively small percentage of the overall fortune." Well said again, although sadly I doubt very much whether these words will make the slightest difference to the conduct of future cases.

Friday, January 28, 2011

Jones v Jones: Valuing a company at the date of marriage

A quick summary of Jones v Jones [2011] EWCA Civ 41, reported today:

The facts: The parties were married in 1996, at which time the husband was the sole owner of a company. In May 2007, when the proceedings for ancillary relief were under way, the husband sold the company and received the net sum of £25m. In February 2010 the court made an order for ancillary relief in favour of the wife, under which she was awarded a lump sum of £5.4m (including £0.4m costs), on a clean break basis. The wife appealed, contending that she should have been awarded the sum of £10m.

Held: In the leading judgment, Lord Justice Wilson stated that the appeal raised a point which he formulated as follows (at paragraph 4):
"When an asset of a spouse – in this case a husband – represents the proceeds of sale of a company which he brought into the marriage and built up during it, how is the attribution of part of the proceeds to the husband's ownership of it at the date of the marriage to be conducted for the purposes of the sharing principle and, in particular, does the exercise of attribution permit focus not only on the value of the company at the date of the marriage but also on the husband's personal capacity at that date to build it up in the future?"

The High Court had found that the net assets of the marriage were £25m and that 60% of the net proceeds of the sale of the company represented what the husband had brought into the marriage, i.e. £15m. That therefore left assets of £10m, of which the wife was awarded half.

The judge had arrived at the £15m figure in the light of the agreed fact that the value of the company in 1996 was only £2m. In so doing, Lord Justice Wilson found (at paragraph 21) that the judge was capitalising the husband's earning capacity at the date of the marriage and was proceeding to treat such capital as a non-matrimonial asset. He held (at paragraph 26) that this approach was wrong, thus overruling the decision in GW v. RW (Financial Provision: Departure from Equality) [2003] EWHC 611.

Lord Justice Wilson then considered what value should be ascribed to the company as at the date of the marriage, and found there were two reasons why the sum of £2m required substantial adjustment: the company's latent potential (or 'spring-board') and an allowance for passive economic growth in the company between the date of the marriage and the date of sale. By reference to its latent potential at the date of the marriage he took the value of the company at that date as being £4m rather than £2m (paragraph 43). He then used an appropriate FTSE index to allow for passive growth (paragraph 50). This lifted the figure of £4m to £8.7m, which he rounded up to £9m.

Accordingly, the value of the matrimonial assets was £25m - £9m = £16m, and the wife was awarded half of this, i.e. £8m (paragraph 51), which represented 32% of £25m, which Lord Justice Wilson considered (at paragraph 52) to be within the bracket of fairness.

The wife's appeal was therefore allowed, and the award of £8m substituted for the judge's award of £5.4m (Lord Justice Wilson felt that the award would enable the wife to meet her need referable to costs).

Lady Justice Arden and Sir Nicholas Wall P gave consenting judgments.

Venal & Grabbit Client Care Letter

Our ref: Venal/
Date:

Dear [client]

Re: Divorce

Thank you for your instructions.

Instructions
You have instructed us to divorce your husband/wife and take them for every penny.

Next steps
We will immediately issue divorce proceedings based upon your spouse's outrageous adultery/unreasonable behaviour, without further notice to them. We will then forthwith issue an application for ancillary relief, seeking 100% of the assets of the marriage.

Person dealing with your matter
Your matter will be dealt with by our Mr Venal, who is the senior partner of this firm. We prefer our clients not to contact us - we will contact you if there is anything you need to know. However, in the event of an extreme emergency (i.e. threatening to life or bank balance) then you may call us. Please note, however, that Mr Venal is far too busy to take calls himself, and you will therefore be referred to his secretary, Brunhilde.

Costs
Our fees will be calculated by reference to the number of hours that Mr Venal spends on the instructions. Mr Venal believes that it is beneath him to specify a particular hourly rate - suffice to say that the rate will be commensurate with Mr Venal's extremely high level of expertise and experience, and will be uplifted should we be successful in carrying out your instructions, as we are sure we will.

We estimate that our costs will be in the range of £100,000 (if the matter is extremely straightforward) to £1 million (if the matter is more complex), although they may be more than that.

We shall of course seek to ensure that your husband/wife will be condemned in costs by the court, in which case we will add a recovery fee to our costs, equivalent to the sum paid by your spouse.

Complaints
In the unlikely event that you should have the temerity to make a complaint about our service, then this will be dealt with by our complaints handling partner Mr Grabbit, whose decision will be final.

Money laundering
Whilst our Swiss bankers ask no questions regarding the source of our deposits with them, we are unfortunately required to abide by certain tiresome government regulations laughably aimed at preventing money laundering. We realise that any serious money launderer would have already forged such documents, but nevertheless would you please let us have two forms of identification, one including a photograph, such as your passport.

We would be obliged if you would sign the enclosed copy of this letter and return it to us together with a cheque on account of our initial costs, in the sum of £10,000.

Yours faithfully,

Venal & Grabbit

Thursday, January 27, 2011

April Fool

Found amongst some old papers:

Romantic

What better gift for your Valentine than a cake in the shape of a heart? A real heart. Anatomically correct. With 'blood' oozing from it.

If you agree then head over to the Lily Vanilli Bakery: "Priced at £7 they are just bigger than a cupcake and come in a cute perspex box tied with a pink or red ribbon and a note if you want to add one." Who said romance was dead?

[Originally found on Boing Boing.]

Family LoreCast #33

In a slightly shorter than usual LoreCast this week, Natasha and I discuss the case where a surrogate mother who changed her mind was allowed to keep the baby and the Law Society's warning regarding the rise in litigants in person if the government presses ahead with legal aid reforms.

Click here to listen to the LoreCast.

Wednesday, January 26, 2011

Child maintenance reform: A question

I said in my last post that I wouldn't comment on the proposals to reform child support. However, there is one question that I would pose, and it's an obvious one: If parents have to pay for the service then they will expect a return, i.e. a successful calculation and collection of child maintenance. In the light of the horrendous record of previous failures of the child support/maintenance system, what assurance can be given that parents will not be wasting their money?

I'll not answer the question, save to say that the Green Paper promises a new child maintenance scheme which "is being designed to deliver meaningful and obvious improvements", at the heart of which will be "a new fully functional computer system" (my italics!). There is little detail of the new scheme (regulations should be drafted this year covering the calculation of child maintenance under the new scheme - presumably, this will be a different method of calculation from that set out in the Child Maintenance and Other Payments Act 2008), save that cases will be reviewed annually (at last), and CMEC will be able to access the tax system to obtain details of the income of the NRP, something that has been mooted ever since the idea of child support was first raised. The DWP says that charging will not be introduced for the first six months of the new scheme, to "ensure we can make the case to clients that the new scheme is working well and provides a better service".

Only time will tell whether the new scheme will work well enough to satisfy paying customers, but it's going to be a tall order...

Child maintenance reform: A summary of the main proposals

I've been looking at the DWP Green Paper Strengthening families, promoting parental responsibility: the future of child maintenance, and thought I would set out a summary of the main proposals. I will not be commenting upon the proposals in this post - for a view in favour of the proposals see this press release from The Centre for Separated Families, for a view against, see this article on Family Law Week.

The proposals that I will be looking at are set out in the following diagram, part of a diagram contained in the paper:

As will be seen, it is proposed that access to the new child maintenance system will be via a 'Mandatory Gateway' (save for those cases involving domestic violence, which will be fast tracked to the 'Access to statutory child maintenance services' stage). The purpose of the gateway is "to ensure parents are first supported to take responsibility and make family-based arrangements [i.e. agree arrangements between themselves] before resorting to the statutory maintenance system". The support will include information and advice and, if appropriate, direct parents towards mediation services. If the parents are able to reach an agreed arrangement, then there will be no charge for this support.

If the parents cannot reach an agreed arrangement, then an application may be made to CMEC. Two types of service will be available: a calculation only service, and a ‘statutory arrangement’.

The calculation only service will be just that: CMEC will calculate how much the child maintenance should be. It is envisaged that the charge for this service will be in the range of £20 to £25.

A statutory arrangement is effectively a full application to CMEC for them to deal with the child maintenance, in the same way as at present. This will involve an upfront application charge of about £100, although parents on benefits will pay a fee of £50, of which £20 will be paid upfront and the remainder in instalments.

There will be two ways for the maintenance to be paid under a statutory arrangement: by direct payment to the other parent, in which case there will be no charge for collecting the maintenance, or through a collection service, which will involve a charge. The collection charge will be a percentage of the maintenance amount, anticipated to be between 15% and 20% on the non-resident parent and 7% and 12% on parents with care.

Finally, if the maintenance is not paid and CMEC have to take enforcement action then there will be a further charge for this service (the ‘enforcement charge’), payable by the non-resident parent. No figure has been suggested for the enforcement charge.

The target date for implementation of the new system is November 2012, for new customers.

The consultation period for the proposals ends on the 7th April. Responses should be sent to the DWP.

Tuesday, January 25, 2011

You don't believe me

I'm not sure that this would be acceptable now, but I couldn't resist posting it:

Monday, January 24, 2011

Forms for Family Procedure Rules 2010

I've been having a quick look at the new forms that will go with the Family Procedure Rules 2010 (thanks to Nick Holmes of infolaw). Obviously, they are too numerous to go through all of them here, so I thought I would give a taste by setting out my initial observations upon one of the most important forms: Form D8, the petition for divorce, dissolution (of civil partnership) or judicial separation.
  • Layout: Generally, the form has been made easier to complete, with a clear eye to the litigant in person (no bad thing considering the impending abolition of legal aid for divorce). It comprises exclusively boxes to fill in or tick, so presumably will spell the end for petitions typed from scratch.

  • Nomenclature: As stated, the form is called a 'petition' (and the party completing the form is the 'petitioner'), but slightly confusingly the form refers to the process (of divorce/dissolution/JS) as an 'application'. I also note that the archaic term 'prayer' has been retained.

  • Contents: The following items are new: the dates of birth and sex of the parties and children are required to be stated, as are whether a statement of arrangements is attached, whether special assistance will be needed at court and whether the petitioner is represented. On the other hand, it is no longer necessary to state whether the parties' names have changed since the marriage, or whether there have been child support proceedings.
In summary, it may look very different on the outside, but little has actually changed underneath.

News Bites: A warning, a comment and a commentary

Vociferous to the last, outgoing Barnardo's chief executive Martin Narey warns that: "Britain is facing a dangerous collapse in adoption rates because of the prejudiced attitudes of some local authorities and adoption agencies towards white parents adopting minority ethnic children." In an interview with The Guardian, he says that the adoption rate of babies must increase fourfold, pointing out the remarkable statistic that: "Only 70 babies were adopted last year compared with 4,000 in 1976."

Meanwhile, in an article for Family Law Week Olivia Stiles and Byron James have little that is positive to say about the Government's consultation on child maintenance: "Here, the Government want more people to keep using the child support system, so, they propose to charge them. It doesn't make sense ... It is not going to encourage more to apply or give confidence in the system to those applying. It is to look at a problem and provide a different solution: 'The dog is barking? Don't worry I've locked the cat in the study'." They go on: "You might say that the number of applicants is not the problem; it is processing those claims effectively. In that case, nothing that has been proposed so far does anything to actually address what is in fact the real problem. The Government's current response is revenue raising, pure and simple."

Lastly, Lucy Reed at Pink Tape, who is clearly a masochist, requested the practice directions to supplement the Family Procedure Rules 2010 and received no fewer than 27 of them, upon which she has today commented, for those who can stand the excitement.

Saturday, January 22, 2011

CW v NT & Anor: Surrogate mother allowed to keep her child

The case CW v NT & Anor [2011] EWHC 33 (Fam) has caused a number of headlines but, at its heart, is a simple decision based primarily upon the capacity of the parties to meet the child's needs.

The facts: In 2009, the mother met a couple ("Mr. and Mrs. W") over the internet and agreed informally that she would be inseminated by Mr. W and after the birth of the baby ("T") hand it to Mr. and Mrs. W. Pursuant to that agreement, the mother became pregnant by Mr. W, and received several thousand pounds from Mr. and Mrs. W. During the pregnancy, however, she changed her mind, and at T's birth she refused to hand over the baby as agreed.

On 23rd July 2010, when T was seven days old, Mr. W filed an application for a residence order. The mother filed a response opposing the application and seeking a residence order in her own name. On 26th August, the court directed DNA testing to establish T's paternity, and the tests confirmed that Mr. W was the father. At a further hearing on 13th October, directions were given inter alia transferring the matter to the High Court, making T a party to the proceedings and appointing her guardian. The case was heard by Mr Justice Baker on the 15th to 17th December.

Held: Mr. W's application was refused, and a residence order was made in favour of the mother. An order was made for defined interim contact in favour of Mr. W, and the matter re-listed for review in February 2011.

Mr Justice Baker expressed 'considerable concerns' about the reliability of some of the evidence he heard. Specifically, he did not believe that Mr. or Mrs. W or the mother had told him the whole truth about a number of matters, for example the mother adopting a false persona to elicit information from Mr and Mrs W, and Mr and Mrs W's previous efforts to obtain a child.

Ultimately, however, the case turned on the court's assessment of the respective capacity of the parties to meet the child's needs. Mr Justice Baker concluded:

"On balance, I have reached the clear conclusion that T's welfare requires her to remain with her mother. In my judgment, there is a clear attachment between mother and daughter. To remove her from her mother's care would cause a measure of harm. It is the mother who, I find, is better able to meet T's needs, in particular her emotional needs. I am satisfied that the mother would foster contact and a close relationship between T and her father. I am less confident that Mr. and Mrs W would respect the relationship between T and her mother were they to be granted residence."

Facebook... again

The Daily Telegraph yesterday reported the news (that isn't news at all) that Facebook is being increasingly implicated in divorce: "Family lawyers have revealed that the problem has become so great that almost every divorce they have dealt with in the past year has involved the website", we are told.

I have not, however, previously come across Facebook getting a judge into trouble. In a new twist to the perils of the social networking site, Florida Divorce reports that a Louisiana family court hearing officer has been criticised for posting about a child support case on his Facebook page. The officer commented about a father of 23(!) children who gets paid in cash and pays no taxes, saying: "I think he needs another job as he has way too much time on his hands! What do you think?" The comments were removed after suggestions that they were not befitting a judge or hearing officer. I've heard a lot worse...

Court system breathes sigh of relief as Marco Pierre White reconciles

I wouldn't normally report a reconciliation but, in view of the trail of litigation that they left (see, for example, here), I think the reconciliation of TV chef Marco Pierre White and his wife Mati is a newsworthy event. The Daily Mail says that the rapprochement may not just be down to rekindled love: "The prospect of losing half his estimated £50million business empire in a divorce settlement may also have persuaded the Michelin-starred chef that it was more sensible to woo back his third wife, Mati", but I wouldn't dare suggest such a thing.

Thursday, January 20, 2011

Inappropriate

According to the Huffington Post this advert, for Ashley Madison, an online dating service for people trying to have affairs (slogan: "Life is short. Have an affair.") has been banned from being shown during the Super Bowl by the Fox Broadcasting Company. Probably something to do with the capybara...

Family LoreCast #32

This week Natasha and I discuss the Law Society's warning of the possible risks of using cheap online divorce sites, Resolution launching a new online directory of IFAs with divorce accreditation and the BBC's forthcoming series Justice - A Citizen's Guide.

You can listen to the LoreCast here.

Now we are five

I've just noticed that I've now been writing this blog for five years. I'm not sure whether this is a moment for celebration or a trip to the psychiatrist. Going with the former, I thought I would do what everybody else does at every excuse for a celebration, and have a fireworks display. So, sparing no expense, here it is:


Sound effects: Bang... bang... bang... etc.

A timely coincidence

According to Obiter in the Gazette today: "In a timely coincidence, as the Law Commission published its consultation on whether the law on pre-nuptial agreements should be changed, London firm Lloyd Platt & Co has launched the ‘pre-nup voucher’", which "entitles the lucky recipient to an hour-long consultation exploring the pros and cons of making a [prenup]". Obiter suggests that the voucher might make the perfect Valentine's Day gift...

Wednesday, January 19, 2011

Sad news

I can hardly bring myself to say this but: Katie .. Price ... has .... announced ..... her ...... separation ....... from ........ husband ......... Alex ..........

Sorry, I can't go on.

Tuesday, January 18, 2011

Good Morning, Good Morning



"I've got nothing to say but it's OK"
- John Lennon

Not having anything particular to say for myself this morning, I thought I would have a look at what others are saying.

News-wise things seem to have been a little quiet over the last few days, but Resolution did announce that it has launched a new search facility to enable members of the public going through separation or divorce to find an independent financial advisor (IFA) with Resolution accreditation. Seems like a good idea to me, although a quick search using my postcode came up with no results within about 30 miles - hopefully, any gaps in coverage will be filled in in the future.

So much for news, what about blogs? Well, over at Pink Tape Lucy Reed has written a post about the Law Society's warning of the possible risks of using cheap online divorce sites, but unlike me she doesn't sit on the fence about such sites: "whilst acknowledging that this may be an excellent and appropriate service for some ... I’m uneasy ... that it may be a service purchased by families for whom it is not the best way forward". DivorceSolicitor takes a similar view: "Trying to sort out your finances without legal advice can result in regret and unfairness... When I first trained I was told you would not attempt to do your own conveyancing to buy a house so why your own divorce finances?" Well, I suppose she does have a point there...

As usual Marilyn Stowe can be relied upon for having something definite to say, this time on the subject of pre-nuptial agreements. She looks at the effect of such an agreement upon what she calls the 'emotional recovery process' that many divorce clients (particularly the "innocent parties") have to go through. Thought-provoking, and well worth a read - the description of the typical recovery process ("from denial to acceptance") will, I'm sure, ring a bell with most family law solicitors (even, sadly, the part about husbands leaving wives who are terminally ill).

Finally, Judith Middleton also has something to say that will resonate with family law solicitors (albeit of a rather less serious nature), on the issue of children's names: "Listening to local radio there were tales of children being called Vauxhall Nova and Pocahontas O’Reilly, although as any divorce lawyer will tell you they would inevitably be spelled Vorkshall and Pokahontass". Yep, been there, done that.

Monday, January 17, 2011

100th Edition of the Family Lore Focus Newsletter!

And they said it wouldn't last. Well, they didn't, actually, but I must admit I did wonder at the outset whether I would keep it going. Now, almost two years later, I have just sent out the 100th edition of the Family Lore Focus Newsletter. For those who don't know, the Newsletter is a free weekly email sent to subscribers and containing links to all the the top family law news stories, cases, legislation, articles, podcasts and blog posts that were reported on Family Lore Focus that week. The links come from across the web, and are all free to view. In this way, the Newsletter is intended to keep the reader up to date on developments in family law, with the minimum of effort and expense (i.e. nil, save for your time!).

You can subscribe to the Newsletter here - all that is required is your name and email address.

Sunday, January 16, 2011

News Brief: Fighting for a slice of the pie

The Observer reports today that: "Solicitors have warned couples planning to use low-cost websites to get a "quickie" divorce that they could risk making catastrophic errors through lack of legal advice." With the likely abolition of legal aid, this could be the first salvo in a war of words between those offering 'traditional' divorce services and cheaper online alternatives, as the two sides fight for a slice of the pie.

Law Society president Linda Lee is quoted as saying: "Divorce can be a highly complex issue and it would be difficult for any case to receive a full and thorough analysis without a client having had the benefit of at least one face-to-face meeting with a family law solicitor."

On the other hand, Mark Keenan, managing director of Divorce-Online claims that solicitors misunderstand the role his company plays: "We're the end of the process, not the beginning. We recommend that people seek advice from solicitors, then once they've decided how to deal with their finances, children and other issues, come to us for the uncontested divorce. We can't give advice, and if someone comes to us still needing advice we will try to find somewhere suitable to provide it."

This, though, does not entirely satisfy the 'traditionalists'. The report continues: "Roz Bever, a partner specialising in family law with Manchester firm Mace & Jones, accepts Keenan's claim, but adds that the saving achieved by getting an online divorce would be negligible."

Expect more of the same in the months to come...

Saturday, January 15, 2011

Something for the Weekend: Larry Griswold

Found this on Boing Boing this week, and it amused me (I suspect I did see Larry Griswold on TV way back in the sixties, but I can't honestly recall):

Thursday, January 13, 2011

Just Call Us

I have received the following press release from Messrs. Venal & Grabbit:

Just Call Us

There have been three family law stories in the news this week that we at Venal & Grabbit feel moved to comment upon.

Firstly, the issue of pre-nuptial agreements. We would like to say that we are fully in support of these becoming legally binding. To us, the concept of another benefiting from one's hard graft is utterly abhorrent. It should, of course, be possible for one to protect one's assets from the gold-digging spouse. If you wish us to draw up a pre-nuptial agreement for you, then we can do so for a very reasonable fee - just call us, on 01234 666-666.

Secondly, legal aid. The misguided fools at the Justice for All campaign believe that we hard-working taxpayers should pay the legal fees of the slackers in society who can't be bothered to do an honest day's work. This is complete nonsense. Venal & Grabbit therefore fully support the government's proposals to withdraw legal aid for most family matters. This does not, of course, have anything to do with the fact that withdrawing legal aid will mean more people paying privately for their legal advice (if you require such advice, then please call us, on 01234 666-666).

Finally, child maintenance. Why should the partners at Venal & Grabbit through their excessive taxes subsidise those who cannot agree their child maintenance arrangements? It is quite wrong. We therefore agree with the proposal that such parents should pay as big a fee as they can afford for the privilege of having their child maintenance sorted out for them. Accordingly, if you would like us to sort out your child maintenance for you, then call us, on 01234 666-666.

Justice for All campaign: Pissing into the wind?

The Justice for All campaign against the proposed legal aid cuts was launched at Westminster yesterday. According to their website the event was very well attended, which is good, although I've yet to find any report of it in the media, which is not so good. In fact, whilst I wish the campaign well I have serious doubts as to whether it will gain enough widespread support to illicit any concession from the government. Unfortunately, the popular media appear to have long since decided that legal aid is no more than a gravy train for fat cat lawyers, and therefore does not merit a penny of public money.

The reality, of course, is that legal aid lawyers are not fat cats, as George Monbiot pointed out in the Guardian's Comment is free column on Monday. But that is not the point. The point is that legal aid is about access to justice for the less well off in our society, people who often are in the greatest need of good legal assistance, and sometimes quite unable to represent themselves. Without legal aid we really will have a two-tier society: those who can afford access to justice and therefore have rights, and those who cannot afford access to justice and therefore have no rights. In the area of family law this could mean not being able to get a divorce, not being able to see your children and not getting the financial settlement to which you are entitled.

I could go on, but I fear that anything I have to say would fall on deaf ears; the die has already been cast: a small saving to the government (relative to the overall debt) is more important than the rights of the needy.

Family LoreCast #31

This week Natasha and I discuss the Law Commission's consultation paper on pre-nuptial agreements, the launch of the Justice for All campaign and the government's proposed child support reforms.

You can listen to the LoreCast here.

Wednesday, January 12, 2011

Family Lore Focus

It seems that there are some who are not aware of my alter ego, Family Lore Focus, so I thought I would do a quick post as a blatant advert reminder.

Family Lore Focus is essentially a site that aggregates freely available family law content from the web, including news, cases, statutory instruments, articles, podcasts and blogs. Every day I check every source that I am aware of including family law sites, general law sites, blogs, newspapers, Bailii and many others, and post links to items of interest. The most recent links can be found on the front page of Family Lore Focus, and older ones on the relevant blogs: Family Lore News, Family Lore Case Digest, Family Lore Articles, Family Lore Podcasts (OK, this presently only includes the LoreCasts that I do with Natasha Phillips) and Family Lore Blogs.

You can also follow the latest news and cases on Twitter, and subscribe to a free weekly email Newsletter (more of which in a few days), here.

Child support: The hide-your-head-in-the-sand defence

What struck me about this story was not so much the fact that the father owes nearly $100,000 in child support, but rather his informative explanation: "I just didn't pay child support". You might say that you can't argue with that but, as the judge pointed out: "It takes quite a bit of work avoiding child support to get to this level of a felony".

Tuesday, January 11, 2011

The future for pre-nuptial agreements

As anticipated, the Law Commission today published its consultation paper on marital property agreements. The accompanying press release reads:

The future for pre-nuptial agreements

Should a couple be able to make a firm agreement – before they get married or enter a civil partnership – about what should happen to their property if their relationship ends? Or should the law remain as it stands, that the courts can decide if their agreement is enforceable?

In a consultation launched today, the Law Commission is asking the public’s views on a range of potential options for reforming the law of pre-nuptial, post-nuptial and separation agreements – contracts made by couples before or during their marriage or civil partnership that are intended to govern their financial arrangements if the relationship ends.

Such agreements have attracted considerable attention in recent months after the judgment of the Supreme Court in Radmacher v Granatino, which went further than ever before in recognising their significance.

But the Supreme Court’s decision was made in the context of the existing legislation. As it stands, the law does not allow a couple to prevent each other from asking the courts to decide how their property should be shared. And it is still down to the courts to decide on a case-by-case basis how much weight to give to any agreement the couple may have made. In many cases this can offer important protection but it can also lead to uncertainty and expensive litigation and there have been calls for statutory reform.

In its consultation, the Law Commission is asking whether the current legislation – which is a generation old – provides the right basis for determining the effect of marital property agreements, or whether a new approach is needed. Could reform bring more autonomy and certainty to couples who want to enter into such agreements, while retaining sufficient safeguards to protect vulnerable spouses and children?

Professor Elizabeth Cooke, the Law Commissioner leading the project, said today:

“Pre-nups are a topical issue. Under the current law the starting point for the resolution of financial division on divorce is the discretion of the court. Some feel that where couples have reached agreement, the courts should not be involved; yet the courts’ approach is primarily protective, and some feel that they should not be wholly excluded.

“Our consultation paper considers the arguments for and against reform and examines how a new approach might balance the desire of some couples to plot their own future with more certainty against the need for safeguards against exploitation and the creation of hardship. This is an issue that needs to be handled with care.”

A summary of the proposals [can be found here]. The full consultation paper is available [here]. The consultation closes on 11 April 2011.

Monday, January 10, 2011

News Brief: Make 'em pay!

Over the weekend we heard of another Conservative idea aimed at encouraging couples to stay together. According to The Telegraph: "Parents who split up face having to pay a "fee" to the government to sort out their child maintenance arrangements under controversial plans to tackle family breakdown." The fee would only be payable by those who can't agree child maintenance themselves. The Telegraph goes on: "[the fee] would only be levelled at the end of a process of mediation when the state stepped in to "police" maintenance payments and child access arrangements", which sounds dangerously like linking the issues of child maintenance and contact.

The rationale for the plan is explained by 'a Coalition source': "The aim would be to be act as a deterrent and help convince parents that splitting up should be an option of last resort when all other avenues had been taken. The whole system needs to be made more family friendly."

I don't honestly think that by the time separating parents get to the point of discussing child maintenance that having to pay a fee will make them decide to stay together after all. On the other hand, having to pay a fee may deter the less well off from seeking child maintenance.

Saturday, January 08, 2011

The naked truth

I guess the moral of this story is: if you owe child support don't let it be known to the judge that you spent $38,000 on gifts for your girlfriend, and certainly don't let it be known that you spent nearly $10,000 on one night at a Las Vegas strip club.

News Brief: Cuts, cuts, loans and prenups

Sharon Shoesmith is back in the news, saying that the funding cuts 'will lead to vulnerable children dying', a warning that seems likely to fall on deaf ears.

On the subject of deaf ears, the Law Society Gazette tells us that: "Next week sees the launch ... of Justice for All, a broad coalition of over 1,000 legal and advice groups, politicians, trade unions, community groups and members of the public ... set up in response to the government’s proposed legal aid cuts, to help raise awareness of the importance of advice and representation for the most vulnerable in society, and ensure that everyone is treated fairly under the law, regardless of their means." Catherine Baksi asks whether it will make a difference:

"The public, educated to a large extent by certain sections of the media to believe that legal aid merely fill the wallets of fat cat lawyers who get the guilty off or enable illegal immigrants to stay in England, is not anxious for spending to increase, so most politicians recognise the issue is not a vote winner and do not address it"

Perhaps the future of legal funding is indicated by this story in The Lawyer: "The Co-operative Bank has unveiled plans to launch funding deals for individual firms to provide clients with loans to fund divorce cases." What happens to those who can't afford a loan is not explained...

Lastly, Family Law Week tells us that the Law Commission is to publish its pre-nup consultation document next Tuesday, the 11th January, and goes on to explain that: "Contrary to some reports in the mainstream press, the document will not constitute a final report and will not make any recommendations." Instead, it "will invite contributions on a variety of options." So now you know.

Flash Mob Wedding

I can't decide if this is uplifting or nauseating:

Friday, January 07, 2011

Hors d'œuvre

This licence plate, which has apparently been doing the internet rounds for years, has been banned by the humourless Virginia authorities because of its cannibalistic message. The plate is a combination of the letters 'EATTHE' and the charity name Kids First. Personally, I can't see anything wrong with it, so long as the children are served lightly grilled with a little butter...

Thursday, January 06, 2011

Chinese checker

"China's exploding wealth has created a culture of secret mistresses and second wives. Now officials are putting marriage records online so lovers and spouses can check for cheats."

- The Guardian.

Family LoreCast #30

In our first LoreCast of the new year Natasha and I look back on the big family law stories and cases of 2010, and look forward to the stories that will be making the headlines in 2011.

You can listen to the LoreCast here.

Wednesday, January 05, 2011

News Brief: Two correct predictions and a prediction

In my 2011 Almanac I jokingly predicted that Justice Minister Jonathan Djanogly would be promoting mediation with monotonous regularity throughout this year. However, even I did not think that he would begin his campaign only four days into the new year.

I was also correct when I predicted that others far more learned than I would provide an analysis of the new Family Procedure Rules 2010. Lucy Reed over at Pink Tape has produced an excellent 'abridged version' of the rules, which I thoroughly recommend.

Meanwhile, the Daily Mail, The Independent and The Telegraph all predict that the Law Commission will recommend that pre- and post-nuptial agreements be made legally binding. We shall see, when their consultation paper is published next week.

Tuesday, January 04, 2011

Divorce Day

Today, the first working day after the Xmas/New Year break has become known (probably more by the media than by divorce lawyers themselves) as Divorce Day, or D-Day, the day on which more people commence divorce proceedings than any other.

According to the Express: "DIVORCE lawyers are bracing themselves for their busiest working day for 10 years today as the fallout from the recession is predicted to take its toll on thousands of couples." They go on: "This year industry insiders fear a 15 per cent increase in inquiries compared with last year as many rocky marriages fail to make it through the recent tough financial times intact."

The Telegraph joins in: "As thousands of couples decide that after yet another unfestive season, marked by rows, resentments and recriminations, it is time to call it a day on their marriages, divorce lawyers are gearing up for their busiest, most lucrative time of the year", although they then go on to say that it is not just lawyers who are profiting from divorce, but a whole new and burgeoning divorce industry, including divorce parties, divorce shows and divorce cakes (above).

My advice to any divorce lawyer whose phone won't stop ringing today: enjoy the good times while you can.

Monday, January 03, 2011

News Brief: The Family Procedure Rules 2010

Hat-tip to Pink Tape for pointing out that the new Family Procedure Rules have been published.

I shall not attempt to explain or analyse the new rules (I am sure that others far more learned than I will do that), but here is a brief summary:

1. The rules will come into force on the 6th April 2011.

2. The rules 'provide a new code of procedure for family proceedings in the High Court, county courts and magistrates’ courts, and replace existing rules of court for family proceedings', including the Family Proceedings Rules 1991 and, in so far as they relate to family proceedings, the Family Proceedings Courts (Children Act 1989) Rules 1991.

3. The rules adopt a similar structure to the Civil Procedure Rules 1998.

4. Parts 1 to 6 'provide for fundamental matters of general application and various preliminary matters', including the overriding objective (Part 1), application and interpretation (Part 2), forms (Part 5) and service (Part 6).

5. Parts 7 to 14 'make provision for procedure for the key types of family proceedings', including applications in matrimonial (including divorce) and civil partnership proceedings (Part 7), applications for a 'financial remedy' (Part 9) and most children proceedings (Part 12).

6. 'Parts 15 and 16 contain rules relating to representation of protected parties and children respectively'.

7. Parts 17 to 19 contain miscellaneous provisions, such as statements of truth (Part 17).

8. Parts 20 to 36 'are of general application and contain procedural provisions
mirroring, with modifications for family proceedings, the general procedural parts of the Civil Procedure Rules 1998', including rules about disclosure (Part 21), rules about evidence (Parts 22 to 24), experts (Part 25), hearings (Part 27), costs (Part 28), appeals (Part 30) and enforcement (Part 33).

Happy reading!

Sunday, January 02, 2011

An Epic: Charon's Blawg Review #292

Charon QC has excelled even himself. His sixth Blawg Review has been published today, and it is truly an epic (to demonstrate just how epic it is, I have reproduced it in its entirety above - I hope that Charon will forgive me this blatant copyright infringement). So, pour yourself a cup of tea (or, better still, a glass of wine), sit down and enjoy Charon's latest journey around the blawgosphere...

Saturday, January 01, 2011

The Husband Creche

A sign outside one of my local pubs, the Sans Pareil. It seems that the 'Husband Creche' is not a unique idea, although I can see at least two problems with it: the husband returning home drunk, and him spending all the housekeeping...

December Post of the Month

When I began to read Muttley Dastardly LLP Episode 10: RE – A Christmas Carol, I feared that the mercenary Matt Muttley may have succumbed to the nauseating sentimentality of Christmas, but thankfully my fears were assuaged. There is, of course, no place for sentimentality when one is the Managing Partner of Muttley Dastardly LLP, and happily Matt comes through his ordeal with "no side effects of feelings of love or affection for our fellow man".

It is a wonderful morality tale, with a truly modern message.

My award for the December Post of the Month therefore goes to Charon QC, for his heart-warming reworking of the Dickens classic.

Strength and Profits!