Friday, February 28, 2014

Friday Review: Marriage and relationship advice

It's been a funny old week. Not so amusing, perhaps, for the members of Renaissance Chambers, who find themselves the latest victims of the legal aid cuts, but there have been other things happening of note (or maybe not).

For example, a story has been floating around in the gutter press over the last couple of days about some spat between two 'top' divorce lawyers. I would tell you all about it, but I lost the will to live before I got to the end of this article in the Daily Fail. If you are sad enough (a) to be interested in such things and (b) to read the Daily Fail, then head over there for all the exciting details (remarkably, the story has also appeared in a certain more 'reputable' publication, but that is behind a paywall, so I won't provide the link).

Moving swiftly on, the big news of the week was of course the publication of the Law Commission's eagerly-awaited report upon Matrimonial Property, Needs and Agreements. For the details see my post below, and if your attention span can't last that long, here is the best summary I came across on Twitter:
As for my views on the report, I wasn't that impressed. As the above tweet suggests, the only real recommendation for a change in the law relates to pre-nups. However, I have never been particularly interested in pre-nups myself. In fact, my advice for anyone whose betrothed asks for a pre-nup is to call the wedding off, as they obviously care more for their money than for you. Whatever happened to 'what's mine is yours' and all that?

I shall end with another piece of advice. If, like me, you're constantly fascinated by all of those wonderful news stories informing us of what is or isn't good for relationships, you will no doubt find this of interest (thanks, David): Secret of successful relationship is getting pissed together.

Have a good weekend.

Thursday, February 27, 2014

Law Commission report on Matrimonial Property, Needs and Agreements published

The Law Commission has today published its much-anticipated report on Matrimonial Property, Needs and Agreements.

Here are the 'headlines':

Financial needs - The Commission recommends that the Family Justice Council produce authoritative guidance on financial needs. The guidance would explain that, when determining a settlement, a judge aims to enable both parties to make a transition to independence.  This would enable couples to reach an agreement that recognises their financial responsibilities to each other, and reflects what the law says on how this should be done. Guidance would also help to reinforce consistency to how the law is applied in the courts, increasing public confidence in this area of the law.

The Commission also recommends that work be done with a view to assessing whether formulae that generate guideline amounts for payment from one former spouse to another could be devised.

Marital property agreements - The report recommends that legislation be enacted to introduce “qualifying nuptial agreements”. These would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution.  In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met. Qualifying agreements could not, however, be used by the parties to contract out of meeting the “financial needs” of each other and of any children.

Non-matrimonial property - The Commission has not made any recommendations about reform relating to non-matrimonial property. Where the parties to a marriage want to achieve certainty in advance about the continued ownership of non-matrimonial property they should be free to make contractual arrangements to that effect, without having to submit their agreements to the courts’ assessment of fairness.

Here is Law Commissioner Professor Elizabeth Cooke discussing the recommendations:

The full report can be found here, and a summary here.

No doubt every legal hack in the business and their spouse will soon have written a piece about the report. Below are links to a couple:

This is Hayley Trim's analysis at Family Law.

And here is Spencer Clarke, Lawyer in the Property, Family and Trust Law Team at the Law Commission considering the key recommendations of the report on Family Law Week.

Monday, February 24, 2014

SA v PA: Mostyn J considers pre-nups and compensation

Mr Justice Mostyn
In SA v PA (Pre-marital agreement: Compensation) [2014] EWHC 392 Mr Justice Mostyn considered, as the case name suggests, two issues: a pre-nuptial agreement (which had been signed by the parties in Amsterdam on the day before the wedding) and the wife's claim that her periodical payments award should be significantly enhanced by reference to the principle of compensation as explained by the House of Lords in McFarlane v McFarlane [2006] UKHL 24 [2006].

I do not propose here to go through the facts of the case, or even the details of Mr Justice Mostyn's decision. Instead, I thought it would be useful to briefly outline what he had to say regarding the legal principles on those two issues.

On the treatment of pre-nuptial agreements he of course referred to the test propounded by the Supreme Court in Radmacher v Granatino:
"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
He then referred to his own previous attempts to summarise the principles, in Kremen v Agrest and B v S. These are set out in paragraphs 11 and 12 of this judgment.

In particular, he stated that there was no requirement to have received specific advice as to the operation of English law on the agreement in question, and that this proposition had been specifically approved by Moor J in AH v PH.

To those principles he added:
"Finally, it is clear that a marital agreement does not have to deal with all aspects of the parties' resources in order to be presumptively binding over the assets or resources which it addresses."
Moving on to the issue of compensation, he summarised the position neatly at paragraph 36:
"Obviously I am bound by the decision of the House of Lords. However, in the light of the later authorities, I think that the principles concerning a compensation claim can properly be expressed as follows:-
i) It will only be in a very rare and exceptional case where the principle will be capable of being successfully invoked.

ii) Such a case will be one where the court can say without any speculation, i.e. with almost near certainty, that the claimant gave up a very high earning career which had it not been foregone would have led to earnings at least equivalent to that presently enjoyed by the respondent.

iii) Such a high earning career will have been practised by the claimant over an appreciable period during the marriage. Proof of this track-record is key.

iv) Once these findings have been made compensation will be reflected by fixing the periodical payments award (or the multiplicand if this aspect is being capitalised by Duxbury) towards the top end of the discretionary bracket applicable for a needs assessment on the facts of the case. Compensation ought not be reflected by a premium or additional element on top of the needs based award."
He went on:
"Having regard to what I said in B v S at paras 73-79 it will be apparent that it is my firm belief that save in highly exceptional cases an award for periodical payments should be assessed by reference to the principle of need alone."
For the record, he found: (a) that, subject to "the critical question of maintenance", it would be fair to implement the capital division specified by the agreement and (no surprise here): (b) that this was not a compensation case.

Friday, February 21, 2014

Friday Review: Mercifully quiet

It's been a mercifully quiet week for family law happenings. Perhaps everyone has jetted off for a half-term sojourn in the sun. Or maybe they're just gearing up for the big family law news event next week, when the Law Commission's report on Matrimonial Property, Needs and Agreements is published. Certainly, plenty of family lawyers seem to be wetting themselves on Twitter in excited anticipation.

Brave man
Lord Wilson, however, has been busy, and you have to admire him for what he has been up to. To give a speech in Belfast in which you profess the view not just that gay marriage is good for marriage generally but also that divorce can have its benefits must have taken some guts. Talk about going into the lion's den. I wonder, also, what Sir Paul Coleridge thought of it?

Lastly, @nickholmes and I had this somewhat surreal exchange on Twitter yesterday. I think one of us may have lost the plot, although I'm not entirely sure which one (click the link on the second tweet):

Have a good weekend.

Wednesday, February 19, 2014

Family Lore Clinic: My consent order application has been accepted - what now?

As usual, I will assume that the term 'consent order' refers to an order setting out an agreed financial/property settlement upon divorce.

If the court has approved a consent order, it will send a sealed copy to both parties, or their solicitors.

What happens next depends upon the terms of the order. If the order contains terms that need to be implemented, such as the sale of the former matrimonial home, or the payment of a lump sum, those terms must be implemented, within the time limits set out by the court in the order.

Of course, some consent orders will require no implementation, for example orders that merely state that there will be a 'clean break' between the parties (i.e orders dismissing all further financial/property claims by either party against the other).

The other thing that usually has to be done be done is to apply for the decree absolute, finalising the divorce, unless this has been done already. Obviously, it is usually the petitioner that has to make the application.

If you are in any doubt as to whether your consent order needs to be implemented, or how it should be implemented, then you should seek the advice of an expert family lawyer.

Tuesday, February 18, 2014

Tuesday Review: Coffins and quotes

Another nail has been firmly hammered into the coffin of the Government's 'Mediation can replace legal aid' policy by the response to Lawyer Supported Mediation's latest Freedom of Information request from the Ministry of Justice. Of course, it won't be until the policy is securely six feet under that the Government finally admits that the whole thing was a ghastly mistake. By then, of course, it will be far too late for legal aid to be resurrected.

Meanwhile, I shall report these two quotes with no comment. Firstly, the latest court statistics, for July to September last year, show that: "The average time for the disposal of a care or supervision application continued to drop to 36 weeks (down 25% from July to September 2012 and down 34% from July to September 2011)." Secondly, in the care proceedings case Re NL (A Child) Mrs Justice Pauffley has pointed out that: "Justice must never be sacrificed upon the altar of speed."

I shall finish with an excellent, albeit now somewhat belated, idea for Valentine's Day:

Friday, February 14, 2014

Friday Review: Brave new world

El Presidente
It seems that El Presidente has published the tenth vista out of his office window. I say 'seems', as it doesn't appear on the View from the President's Chambers page on the Judiciary of England and Wales website (and nor, come to that, does View #9). I would have thought that a document such as this should be for general consumption, but it appears that it is only sent to the chosen few, such as the FLBA and LexisNexis. Presumably they are on El Presidente's mailing list, but why such a document is not generally available is a mystery to me.

Anyway, as to the contents of the View, the chosen ones have already admirably summarised its contents, here and here. Basically, our glorious leader explains the brave new world that has apparently already dawned for those unfortunate enough to be working in the family justice system. Essentially, as Lucy Reed at Pink Tape points out, this will involve becoming familiar with an avalanche of new rules and guidance. If there was a god, I'd be thanking Him or Her that I was no longer practising.

Enjoy your Valentine's Day - oh, and don't enter into any commitments you may regret.

Tuesday, February 11, 2014

Tuesday Review: The first of the many

Three cases to mention today:

According to Andrew Pack over at suesspiciousminds, the unassuming little judgment in Re A, B and C (Children) [2014] EW Misc 2 (CC) is "the first judgment to be published and made available online despite not having any significance or importance in and of itself". By that, I assume he means the first to be published in accordance with the President's practice guidance on transparency that wouldn't have been published previously. I have to agree that it is not the most exciting of judgments, and is unlikely to make the legal textbooks.

Mrs Justice King
A rather more interesting judgment published today was in the case SA v BN [2013] EWHC 4417 (Fam). This was a father's application for contact and parental responsibility in respect of his three year old daughter. Nothing unusual about that, you might think. Well, no, except that the mother claimed that the child had died in a car crash in the Congo. It fell to Mrs Justice King to decide whether this was true, or whether it was part of some elaborate fa├žade designed by the mother and her father to thwart contact. Mrs Justice King decided it was the latter. A case that demonstrates that you should never believe you have seen it all - you haven't.

Lastly, I come to RS v SS [2013] EWHC B33 (Fam), decided on the 23rd of December (note the date). This was a father's application for a transfer of residence of his two children, supported by the Guardian on behalf of the children, and strongly opposed by the mother. Her Honour Judge Harris ordered a transfer of residence. Now, these days I don't usually read Christopher Booker in The Telegraph, but it was this case that led to one of his recent lurid headlines: Children pulled from their mother on Christmas Day. Mr Booker firmly placed the blame for this appalling turn of events at the door of Judge Harris. However, the postscript to her judgment clearly indicates otherwise:
"The hearing concluded late on 23rd December 2013 which was far from ideal but unavoidable. I ordered that the mother take the boys to the paternal grandparents by 2pm on 24th December. She refused to comply with the court order. Late afternoon on 24th December the father made an urgent application to Cobb J by telephone for a collection order. He had a note of this judgment. The application had the support of the Guardian. The police failed in a timely way to assist the Tipstaff to enforce the order. The result was that the paternal grandparents spent the whole night of 24th December at the police station and the collection order was not enforced until early Christmas morning. This too was unfortunate and unavoidable. The mother brought this situation on the boys."
A case in point for the publication of judgments?

Monday, February 10, 2014

S v S: Non-disclosure only material if order would have been substantially different

Briefly: Financial remedies hearing concluded after parties reached agreement. Wife's application to resume hearing on grounds of fraudulent non-disclosure by the husband was dismissed. Wife appealed. Appeal dismissed.

S v S [2014] EWCA Civ 95 is one of those rare birds these days: a split decision from the Court of Appeal.

The facts were stated by Lord Justice Moore-Bick:
"The claim had come on for hearing before Sir Hugh [Bennett] in Liverpool on 9th July 2012. On 13th July, by which time both the husband and the wife had given evidence, the parties were able to reach agreement and the hearing was brought to an end. By 25th July the terms of a draft order had been settled and approved by the judge. However, on 30th August the wife's solicitors made an urgent request to the court not to seal the order and in due course the wife made an application to resume the hearing of her claim on the grounds that her agreement to the proposed order had been obtained by fraudulent non-disclosure on the part of the husband. The matters which it was said he had failed to disclose concerned arrangements then being made to float on one of the New York stock exchanges by means of an initial public offering ("IPO") a successful company, [a company name] Ltd, (referred to by the judge as "X Co.") of which he owned about two thirds of the shares."
He went on:
"The value of the husband's shares depended in part on when and in what manner he was able to sell them. One, but by no means the only, way in which that might come about, was through an IPO. The husband's evidence at the hearing was that although in theory such a step might be taken at any time, it was most unlikely that there would be an IPO (or any other step leading to a disposal of his shares) in less than 3 years time and probably not until 5-7 years into the future."
The wife's application to resume the hearing was based on her discovery that, contrary to what he had said in evidence, the husband had been holding discussions with various investment bankers earlier in 2012 as part of active preparations for an IPO of the company.

In a judgment delivered on 29th April 2013 Sir Hugh Bennett found that the husband's evidence at the hearing in July 2012 had been seriously misleading, indeed dishonest, because, contrary to his assertion that no disposal of any kind was likely for at least three years, planning for an IPO in early 2013 had been in full swing from January to August 2012.

However, Sir Hugh then referred to the following passage in Lord Brandon's speech in Livesey v Jenkins:
"It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund."
He concluded that any order which would have been made if proper disclosure had taken place would not have been substantially different from the heads of agreement incorporated into the draft, unsealed order which he approved. Accordingly, notwithstanding that the husband was guilty of non-disclosure, in all the circumstances he concluded that the non-disclosure was not material. Accordingly, the wife's application was dismissed.

Lord Justice Moore-Bick agreed with Sir Hugh Bennett:
"Deplorable though his conduct may have been, I do not think that the husband's dishonesty adds anything of significance to the case, although it may be a matter to be taken into account when the court comes to consider the question of costs."
He concluded:
"It may be unusual for a judge to conclude that despite a deliberate failure by one party to give full and frank disclosure the resulting order should not be set aside, but ultimately that must depend on the nature of the non-disclosure and its effect on the outcome of the proceedings. In this case the husband's non-disclosure was deliberate and dishonest, but because of the rather unusual circumstances there were good reasons for concluding that it had not resulted in an order significantly different from that which the court would otherwise have made at the conclusion of the proceedings. In my view the judge was entitled to hold that the wife had not made out sufficient grounds for re-opening the hearing. That called for an exercise of judgment on his part and in my view his decision was one that was open to him."
Accordingly, he dismissed the appeal.

Lord Justice Briggs reached the opposite conclusion. He considered that the judge had underrated the significance of the fact that the husband's conduct was fraudulent, that he wrongly derived a special rule or principle from the final paragraph of Lord Brandon's speech in Livesey case, or at least misapplied it, and that he overrode the wife's right to a fair hearing of her claim.

Lady Justice Macur agreed with Lord Justice Moore-Bick. She pointed out that:
"...the husband is, and will be, rightly subject to the opprobrium of this and the lower court and law abiding members of the public generally and may be subjected to criminal prosecution, civil contempt proceedings and/or a costs penalty. In these latter respects the abuse of the court process is penalised and deterrent measures achieved."
She concluded with this rationale:
"Litigants may lie for any number of reasons and not necessarily to obscure assets or the proper evaluation of an ex-spouse or partner's claim. It is not unknown for the wealthiest of litigants to fraudulently conceal comparatively small amounts to conceal the source or existence of an undisclosed and covert lifestyle. The amount might be inconsequential in the scheme of things but on the basis of my lord's judgment would require any award to be set aside. The court system would grind increasingly slowly. The impact would be more far reaching than upon the parties concerned."

Friday, February 07, 2014


"Hughes hopes to recruit volunteers and magistrates – serving or retired – to present a more friendly face at the entrance to courts." - The Guardian, 6th February 2014.

Friday Review: Love won't keep us together

'Love will keep us together' said the song. Well, as every divorce lawyer knows, there is no such thing as love, and this is confirmed not just by the divorce of Captain and Tennille, but also by the latest divorce statistics, showing an increase in the divorce rate. Despite the lurid headlines of a divorce every five minutes (the courts must have been running through the night to cope with the demand), I'm not sure that the increase is statistically significant, although some are blaming it upon the recession (personally, I blame everything on the recession). Still, any increase must be good news for us divorce lawyers...

Andrew Pack over at suesspiciousminds answers the question that I have wondered about ever since reading the President's transparency guidance - just how much will it cost to have all these judgments published? The figure he comes up with is over a million pounds, and that's excluding Court of Protection judgments. Hmm, not sure where that's going to come from. Perhaps Sir James could make a contribution from his £208,926 salary?

Lastly, The Guardian reports that our new Justice Minister Simon Hughes (obviously taking time off from his singing career) wants our courts to become more 'welcoming' places. How nice. Perhaps they could have a few more pot plants, and maybe a bar. We could even introduce star ratings. I particularly liked this quote from the great man: "I want our courts to be places where everyone feels they ... can get justice." He clearly has his finger on the pulse.

Wednesday, February 05, 2014

Wednesday Review: Excellent news

Two pieces of good news today:

Firstly, Family Law reports that the 'shared parenting' presumption in clause 11 of the Children and Families Bill has been 'watered down'. The clause of course provides that courts should ‘presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare'. This was felt by many, including myself, to be an invitation to parents to claim that they were entitled to an equal share of the child's time. Thankfully, common sense has prevailed and the clause has been amended to state that ‘involvement' means involvement of some kind, either direct or indirect, but not ‘any particular division of a child's time'. I can hear those fathers' rights types grating their teeth in frustration...

And secondly, from the country's #topfamilylawyer:

Monday, February 03, 2014

Monday Review: Prenups, a petition and a blog

The Daily Mail appears to have got wind of the recommendation of the Law Commission in its marital property agreements project, the final report on which is due to be published on the 27th of February. According to the Mail, prenuptial agreements are to be "enshrined in law" (assuming, of course, that the Government accepts the recommendation). Now, you may not be happy about taking the word of the Daily Mail on this, but I believe that that rather more reputable publication The Times has run a similar story. Alas, that appears behind the Great Paywall of Murdoch, so I won't be linking to it.

Today and tomorrow parliament is debating the planned changes to the child maintenance system. As is well known, single parent charity Gingerbread is opposed to the changes, and is handing in a petition to that effect to the House of Commons at 2.30 today. In particular, Gingerbread is opposing the planned charges that are to be introduced, which it says will mean children will lose out. The Government counters this by saying that the charges will 'incentivise' parents to reach their own agreements. Whilst that may happen in some cases, I don't see that it will make the blindest bit of difference in the large number of cases where the absent parent (or whatever they are called now) has no intention of paying anything anyhow - why should they worry about being liable for charges, when they don't intend to pay child maintenance at all?

All family lawyers will surely be familiar with David Burrows. David has been speaking about and writing upon family law for as long as I can remember (I was one of the many hundreds of lawyers he spoke to). Now, David recently discovered this thing called THE INTERNET. Since then, he has taken Twitter by storm. However, he was clearly not content with that. Accordingly, he has just started his own blog, dbfamilylaw. The blog's strap-line tells us that its aim is 'a better family law', and this is confirmed by the brief bio which tells us that David is "serious about family law reform". If you are serious about family law at all, you should add the blog to your bookmarks.