What can the Daily Mail teach about family law?

Actually, by the look of it, zip all!  Take the last time I commented on a Mail columnist - you'll find it here:-

It just doesn't work this way - thank heavens!

Well, having done a number on how to look after children after separation, last week it was time for the Mail to look at cohabitation and its pitfalls, with equally detailed research and attention to detail!

Professional women and cohabitation

So, where to start then?

"Whenever my boyfriend — who is a little younger than me at 36 — helps me put up a shelf at home, I confess that a little voice in the back of my mind wonders whether home improvements constitute something legally binding."

Why?  The law really isn't that stupid, for Pete's sake!

" I get worried when he leaves a toothbrush in my bathroom, or a pair of socks in a drawer, because land and property law is so ambiguous about the point at which someone has a claim on you after living in your house."

No, the law isn't unambiguous in this way at all.  How about a bit of  research before writing this sort of drivel?  If you want to claim ownership of a property where your name is not on the title, you have to satisfy a judge that there was an agreement to share ownership.  Then you have to show that you acted to your detriment in reliance on that agreement.  Where you put your toothbrush or socks just doesn't cut it.  Handing over large amounts of money would, I grant you, but then, why shouldn't it?

In my experience, claims of joint ownership are hard to prove and courts rightly look for very strong evidence that the party making the claim has genuinely made a major and direct financial contribution to the asset in question.  Short of that, it's no dice.  Decorating the house isn't enough; paying into a joint bank account isn't enough; looking after the children certainly isn't enough.

"There are horror stories nearly every week of men demanding enormous settlements from their ex-wives." 

You what?  Men demanding enormous settlements from their ex-wives?  Where on earth is that happening?  I'm such a sad individual that I spend my lunch time reading law reports on bailii just for the fun of it and let's be clear, it's wives demanding enormous settlements from husbands that I'm reading - not the other way around.  So what if there were anyway?  That's the by product of equality and why not?  Equality isn't a one way street, nor should it be.

"Millions of couples still mistakenly believe there is such a thing as ‘common-law’ marriage, when there absolutely is not.

This means the law is very ambiguous about who owns what when you cohabit."

True, millions of couples do think that and they're all wrong, just as you say.  I repeat, however, the law is not ambiguous.  The law says that the legal title determines who is the owner except in very unusual circumstances.  I don't know whether statistics are kept, but after over 16 years of family law, I can assure you that I do far more divorces than claims by one cohabitant against another.  In fact, it's so hard to do this that the Law Commission recommended that parliament legislate for financial adjustments between cohabitants but the government kicked that idea into the long grass last autumn.

" For me and the other women who earn more than their partners — my boyfriend works as a builder — the bottom line is this: If almost one in two marriages end in divorce, getting married is like taking a 50-50 gamble on everything you have worked for."

Yes, well, that's how marriage has been for ages.  Men are still expected to do it though.  In divorce, the spouse with the greater asset base is likely to be sharing it with the other, unless it's a very short and childless marriage.  As women are improving their relative prosperity and men are finding homemaking an acceptable occupation, divorce may well mean men being recognised as primary carers for their children and receiving property transfers from their wives instead of the other way around - what is so unfair about that?  Sauce for the goose can be sauce for the gander too.

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Designer Families 2 - Now that didn't take long, did it?

Family Law Week has just produced the judgment in the case I mentioned in an earlier blog - the Court of Appeal has decided an appeal by a father against the very limited contact he was permitted with his child who lived with her lesbian mother her mother's long term partner.

You can see the earlier blog here: Designer families - can they ever work

I ended that post by asking the question, do I need to change my advice to clients?  Is it now the case that what parents decide should be the caring regime for a child prior to birth should become a key factor in how the court determines the appropriate order to be made in Children Act proceedings?  Well now we know the answer - it's no!  I can carry on just as before.

The report is now on bailii and is quite short and digestible -  A v. B and another

The oddity of the case at appeal is that there was actually no appeal against the order - just the judgment, the reasons for the order.  In other words, the father didn't take issue with the amount or frequency of the contact ordered for the present, what he was unhappy with was the implications of the judge's thinking for future increases in his involvement in his child's life.  The Court of Appeal shared those concerns.

Firstly, the recent idea of Hedley J to think of parenting in terms of principal and secondary carers has already been discarded.  Thorpe LJ says of this, "I would not endorse the concept of principal and secondary parents. It has the danger of demeaning the known donor and in some cases they may have an important role. In the present case some would say that the primary carer is the full-time nanny."

Secondly, it highlights the inherent weakness of limiting parenting to function or time spent.  That really is the effect of that last sentence.  It's the nanny who provides the majority of the hands on caring - how can we define the importance of a parent in terms of who picks up and drops off, who gets up in the middle of the night, who reads with the child and so forth?  A good parent may well do all these things, but so, perhaps, does a good nanny!

Most importantly, for me at least, is the point about parents making their own plans before the child is conceived and then being forced to stick with them.  Not so, says Thorpe LJ, and for me this is by far the most predictable element of the judgment - how could it be different?  "I am cautious in reaction to Mr Howard's repeated submissions that great weight should be attached to adult autonomy and the plans that adults make for future relationships between the child and the relevant adults. Human emotions are powerful and inconstant. What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. B and C may have had the desire to create a two parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created."  In other words, it's all about the welfare of the child, not the plans of his/her parents - and there's nothing revolutionary about that now is there?

One thing I found quite encouraging too was the Court's readiness to hear and allow an appeal even though it wasn't seeking a variation of the order itself, merely the reasoning behind it.  Sometimes a judge can make the right decision but for the wrong reasons.  However, that on its own won't be enough of a reason for appealing the decision.  The key point in this case was that using the wrong reasoning was almost inevitably going to lead to complications for the future care of this child.  That's why the appeal was both heard and successful.





Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Good news - judges like to do the right thing. Edgerton v. Edgerton

 There's been one of those odd and complicated divorce cases in the Court of Appeal recently.  It's all to do with a husband declaring that a significant part of the family assets, belong to his mate.

First the husband asserted that he owed his friend Mr. Shaikh a shed load of money.  Then the story changed - actually Mr. Shaikh and he were in partnership and that a large sum of money and a house were actually partnership assets.  Despite the fact that the wife had got an undertaking from the husband that he wouldn't dispose of his interest in various assets, including the "partnership" assets, the husband's friend began an action against the husband, claiming repayment of the debt.  Then he discontinued that action and began a separate one, claiming that his partnership with the husband was dissolved and seeking an account of the partnership assets.

Withdrawing legal aid - stupid or what?

So now Mrs. Edgerton faces her first problem.  She has legal aid for the divorce proceedings but the partnership action is in the High Court Chancery division.  At one stage it is joined with the ancillary relief application but for unexplained reasons this is changed and the hearings are separate.  It is not clear why, but she didn't have legal aid for the Chancery action.  Legal aid to argue over the property division but no legal aid to decide how much property there is to divide.  Penny wise, pound foolish!

As a result, Mrs. Edgerton loses the Chancery action and a large slice of the matrimonial pot looks as if it's going to disappear to the husband's close friend and associate.

However, the judge in the divorce proceedings, somewhat surprisingly, asserts that he isn't  bound by the decision of the chancery court as to the partnership action.  The order in the chancery action had been by consent between the husband and his friend as the wife's defence of it had been struck out for failure to comply with directions. In other words, the wife had unsurprisingly been out of her depth, she didn't have legal assistance and the husband had taken full advantage of this.  As a result, the family judge makes an injunction which effectively prevents the chancery order being implemented, so the husband and his friend appeal against the injunction to the Court of Appeal.

At the Court of Appeal

Now it doesn't require a great deal of legal knowledge to appreciate that the wife's case in relation to the chancery order has problems.  There aren't different High Courts - there's just the one and it simply has different divisions.  That must and does mean that a decision of one division must bind all the other divisions.  That's why in relation to disclosure issues, husbands have tended to go to the Queen's Bench Division for orders rather than the Family Division - the judges have a different approach and can still bind the family judge.  So this was an appeal which was bound to succeed and it did.

But the Appeal judges clearly couldn't stand the thought of clear injustice being done.  They thought long and hard and came up with a doctrine, based on uncontested facts, which would give the wife a remedy.  They then set a timetable with detailed steps which would enable her to access that remedy.

So good news!  Judges are hostile to injustice and will exercise their intellects and legal knowledge to secure justice for a litigant wherever possible.  All is not yet as bad as it could be.






Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Is this the most sordid ever? Ibuna v. Arroyo

When I first started in law, I dealt exclusively with crime and that was sordid.  Then I moved into family and that was more sordid.  However, until now I have always maintained that the most sordid work I do is contested probate.  What can be worse than arguing over the property of someone who has just died?  Well now there's an answer to that - arguing over a dead body!

It seems that Congressman Arroyo was a high profile member of the Philippines legislature.  He was resident in both California and the Philippines and was domiciled, unsurprisingly, in the Philippines.  In the early 90's he married for the second time but by 2005 that marriage had ended in separation.  In 2006, he formed a new relationship with Ms. Ibuna and started annulment proceedings - we need to remember that the Philippines is a largely Catholic nation and annulment is to be preferred to divorce.  Mrs. Arroyo litigated against him, securing an order excluding him from their family home in 2006.

In 2009, the Congressman made a will which in broad terms gave Ms. Iguna a life interest in his estate with the remainder going to his three daughters.  In January 2012, the Congressman was in London for medical treatment - it seems that he had been ill for some time and had often come to London for treatment.  On 26th January, he sadly died.  By the time of his death, the annulment proceedings had still not concluded, so technically Mrs. Arroyo was in fact his widow. 

So then the arguments really begin and they're all about the corpse!  The Congressman's partner was well aware of his wishes for his funeral and other formalities and wished to carry them out.  The Congressman's estranged wife was prepared to do the same but with one significant amendment - the Congressman had expressed the wish that the wake should be held at his family home.  Mrs. Arroyo wanted to hold it at the former matrimonial home which coincidentally was in the same street.  However, the suggestion in evidence was that if the wake took place there, the Congressman's partner of the last five or six years of his life wouldn't be allowed to attend.

As a result of this disagreement, the High Court Chancery Division had to hold two interim hearings and then a whole day hearing.  Unsurprisingly, especially given that  Mrs. Arroyo didn't participate in the hearing, the decision was to honour the Congressman's designation of his partner as his next of kin, with the support of at least two of his daughters.  So by order of the English High Court, one presumes that the wake will now take place at 14, Badjao Street and not at 17, Badjao Street.  Another triumph of British Justice, the envy of all the world!

Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.

Am I the only person to be annoyed by this?

 This is simply so sexist!  Why do people think that this is an appropriate way to report or campaign on a serious matter?

Women and children could die

Well, what about men?  Has this been completely forgotten then?  Or perhaps nobody really took any notice of it in the first place!

Men get hurt too

Or this:

Men get killed as well

Or perhaps men dying doesn't really matter.  To say that this latest shot in an otherwise worthy campaign is stereotypical would be a crashing understatement.  Let's be clear - men deserve and are entitled to the protection of the law every bit as much as women or children.  Making men invisible in terms of protection shows a callous disregard for 50% of the population.  Quite rightly, that sort of attitude towards women has been pilloried for decades and the sort of overt discrimination which they suffered is at least expressly condemned if it has yet to be entirely eliminated.

Google domestic violence and you will find a plethora of sites discussing violence against women.  Now that remains a national scandal and it seems that few of the initiatives of the last 20 years have had much effect in reducing its incidence.  However, failing to recognise the existence of male victims and brushing them off as a statistical irrelevance is, I have to say, deeply prejudiced.  Perhaps not consciously prejudiced but prejudiced nonetheless.  The Lawrence enquiry found the police to be institutionalist racists.  Is family law in danger of becoming institutionalised sexists?


Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.