Friday, 29 June 2012

Same sex marriage and polygamy

In all the contention about same sex marriage, one issue was brought up on what might be termed the religious side of the debate, namely that to legislate for same sex marriage would lead to pressure to legalise polygamy. Now this has been described as a cynical ploy by those in favour of the government's proposal and I wasn't sure at first whether this was a genuine concern or not. Thinking through my earlier conclusions about devising and recognising separate religious and civil marriages, I rather think there may be some substance to what is being said.
Neil Addison published an article recently on the subject which you can see here:

Same sex marriage and polygamy - where's the link?

Now I'm not sure that there will be great pressure to recognise polygamy in English law, but giving religious marriage a separate and recognised status may do that quite unintentionally. Have a look at this:

Polygamy in the UK

Already it seems that there are increasing numbers of Muslims living polygamously and they are able to do this without infringing on their religious obligations because it is expressly provided for. Giving a legal status to the nikka means that polygamy gains a status in law which it does not and cannot have at present. On the other hand, if you choose to protect the present position by forbidding multiple wives either civilly or religiously, do you risk being seen to interfere in matters of religious observance? But, you may say, the practice of nikka in some quarters is already infringing on the legal position and we have chosen to do nothing about it. Why not allow Muslims to do whatever they choose? They are consenting adults, after all.

Is polygamy wrong in principle? As to that, I'm firmly with the British Colombian Chief Justice;
"polygyny contravenes women's rights to equality with the male, harms and impoverishes their children, and .... the practice harms ALL society in that it pits younger, poorer men against older, richer males in the search to collect women as concubines in their harems. (Mother Nature has not even made two women for every one man.)  Every man who helps himself to four wives is robbing three other men of the chance to have a wife and family of their own, thus making polygyny an anti-social act. As well, while the man has a choice of sexual partners every night, the women must line up and take their turn, just as if they were cows waiting to be serviced by the bull. Moreover, only the first, legal wife and her children are entitled to share in the man's income, pensions, health, dental and vision coverage, etc. The remaining women and their children are on their own, and face poverty. "

Even to consider altering the consistent monogamous stance of English law for as long as there have been records is, so far as I am concerned, unthinkable. Equally, however, to allow some individuals to circumvent the law is unacceptable. If this is happening, and in the light of the BBC report there is every reason to think that it is, the time has come for it to be confronted. As I mentioned previously, an entirely parallel jurisdiction is being constructed and this must be to the overall detriment not only of individuals who may be pressured into accepting it, but also for society as a whole. To me, this is a far more pressing issue than same sex marriage. I really do wish sometimes that politicians could get their priorities right.

 Blog Disclaimer: Nothing in 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.

Tuesday, 26 June 2012

How to make something really simple expensively complicated.

Some of you may have noticed the increasing hysteria, whipped up by newspapers and politicians, over the cost of car insurance.  Even I have emerged from my ivory tower long enough to blench at the cost of renewing the insurance on my family runabout. Drastic steps, we are told, need to be taken to bring down the cost to insurers of accident claims.  Chief among these are:

1.  Damages for sore backs and necks - usually averaging somewhere in the region of £2,500 per claim;
2.  Credit hire claims - where the victim of an accident hires a car on credit until his/her own is repaired or paid for as a total loss;
3.  Legal costs - which are now fixed in many cases at as little as £1,200.  The major element under attack is the payment of a referral fee, many of which went to the insurers in the first place, by which a solicitor acquires a client  at the outset.

Sweeping costs changes have been recommended to reduce the costs of accidents to insurers, in order that they can pass on the savings in lower premiums.  No or reduced success fees for lawyers.  Reduced fixed costs for the more valuable claims - up to £25,000 perhaps.

And then comes the next great cost inflator - and just like referral fees, it comes from the insurers themselves!

Royal and Sun Alliance

Coles v. Hetherton

What should an insurer pay for a car to be repaired?  Now you would think the answer to this is blindingly obvious - the amount it cost for the garage to repair it, duh!  Well it seems that this is not so.  Let me explain why.

RSA came up with a cunning scheme to make a profit from repairing cars instead of just from insuring them.  All with relatively little need to fix them themselves.  What they did was this; first they set up a company called RSA Accident Repairs Ltd.  Then they assigned to it a trading name - MRNM.  Doesn't look too much like RSA, does it?  MRNM opened six garages to do motor repairs and 15% of the repairs carried out on RSA policy holders' cars were carried out in those garages.  Or to put it another way, 85% weren't.

Those 85% were repaired at independent garages, who duly invoiced MRNM, for the work they had done.  Then MNRM billed RSA an amount which invariably exceeded what it had paid to the garage.    Then, of course, RSA demanded that the other driver's insurer pay the MRNM charges, not the garage's.  "RSAI accept that the model described generates income for MRNM which is a company in the same group as itself, though not a subsidiary."

So how is this justified?

RSA has two justifications for this system.  In the first place, it says that a private individual would never get the preferential rates it can negotiate with repairers due to its buying power.  It doesn't see why that benefit should be passed to the other insurer - it retains that benefit by this system.

Secondly, it points out that other insurers have different methods of ensuring a similar outcome, such as charging garages a referral fee for passing their drivers to them for the repair work.  RSA is just generating a profit for a group company by a slightly different route.  Obviously a garage which has paid a referral fee to get the work has to recoup it by increasing the cost of the repairs, in just the same way that a law firm does when charging for the personal injury work arising from an accident.

And the legal analysis?

Well it seems that this is actually quite complicated.  The judge points out that the measure of damage is actually the reduction in the value of the car resulting from the accident.  Commonly this is taken as being the reasonable cost of repair because after a repair, clearly the value of the car will have been restored to its pre-accident level.

But what is the reasonable cost of repair?  Is it the amount actually paid to put the damage right or is it the amount the car owner would have had to pay if the insurer hadn't negotiated a better deal?  You can read the judgment if you wish, but I can tell you that it goes over a number of cases stretching back more than 120 years and which in the main part seem to concern ships.  The judge concluded that the actual amount paid to fix the car does not determine the level of compensation to be paid for the reduction in its value.

What should be done?

Parliament is already legislating in this area.  It's declared intent is to protect the interests of car owners by driving down premiums.  Good.  So let's see if our MP's are actually prepared to do just that.  Why leave this in the hands of the courts and cases about ships from the 19th century?  Just enact a nice simple bit of legislation which provides that the measure of damages in a motor accident which can be recovered for the repair of a car is what it actually cost to fix it.

The stupid thing is this - all these cunning schemes, demanding referral fees and the like, increase the amount of money sloshing round the motor insurance industry, but don't improve the insurers' profitability.  Every referral fee received by an insurer simply has to be paid out again as suppliers add it to their own charges.  There's a huge oncost but no additional benefit for anyone.

Is it too much to ask that insurers revert simply to insuring drivers against known risks and leave fixing their cars to mechanics?

Blog Disclaimer: Nothing in 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.

Tuesday, 12 June 2012

How many types of marriage are there? How many should there be?

This week sees the end of the period of consultation for the proposed introduction of same sex marriage.I have been thinking this over ever since the proposal was first mooted.  From a family lawyer's perspective, I am coming to conclude that the law of unintended consequences is likely to kick in if this is enacted and rather more trouble is going to come out of it than was ever foreseen.  Let me explain what I mean.

Religious marriage and civil marriage.

In its consultation document on same sex marriage, the government says, "Under current legislation a marriage can only be between a couple of the opposite-sex i.e. a man and a woman. A marriage can be conducted on either, religious premises through a religious ceremony, or on secular (non-religious) premises through a civil ceremony."

They then go on to say, "From [these] discussions it became clear that the immediate issue that needed consideration was enabling same-sex couples to have a civil marriage. The Government is committed to taking forward equal civil marriage and wants to consult widely on how best this can be done."

So I got to wondering, is this right?  Are there two different types of marriage recognised in law, religious and civil?  You know, I don't think there are actually.  And what's more, as I have thought this through, I think it's enormously important that there shouldn't be.

The Marriage Act 1949 (as amended)

The Marriage Act 1949 governs marriages in England and Wales.  It has been amended down the years but it cannot be simplified in the way that the Government's consultation suggests.  Part I of the Act deals with who can and cannot be married.  Part II deals with marriage in the Church of England.  Part III deals with marriages under a Superintendent Registrar.  Now that looks like the establishment of two separate types of marriage, religious and civil, until you look at s.26, which falls in the Registrar's half of the draw.  This sets out the Registrar's authority for marriages in various establishments, including synagogues and Friends Meeting Houses (Quakers).

So the extent that there is a distinction in law, it's between Church of England ceremonies and all the rest.  In fact, the longer you look at the Act, the less easy it is to make any clear cut separation into the two categories which the Consultation suggests.

This came to the fore recently in a High Court decision which concerned what the "husband" and the "wife" at the time saw as a valid marriage  but which wasn't.  You can read the judgment here -

Dukali v. Lamrani

The parties in this case went through a ceremony at the Moroccan embassy which they believed, and were advised, was valid in both English and Moroccan law.  As Holman J determined, though, it wasn't.  As a result, English law makes no provision for the wife on the ending of the relationship.

But why is it important?

Well, whether you like it or not, various religions teach uncompromisingly that same sex sex is morally wrong.  As marriages can presently be celebrated in a variety of religious premises, if same sex marriage is approved, on the face of it, it would be a clear breach of equality legislation for a church to refuse a same sex marriage ceremony to a gay couple. So the state would be seen to have legislated in a way which requires a religious body, presently entitled to institute a valid marriage, to do so in a way forbidden by its religious rules.

By trying to establish two separate identities for marriage, the government clearly hopes to sidestep this issue.  But will it work?  As I say, I don't believe that the Marriage Act is open to this interpretation anyway.  The only real distinction arising by virtue of the Act is valid marriages and invalid ones.  Any ceremony or celebration which does not comply with the provisions of the Act simply isn't a marriage.

Even if the Act did draw a valid distinction, this doesn't solve the problem.  Neil Addison is a practising barrister who happens also to be a Catholic.  He has pointed out on his blog that European law doesn't permit different treatment.

Religion law blog

He cites an authority to the effect that the European Court "reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage."  To be quite honest, this should come as no sort of surprise at all.

So as far as I'm concerned, to provide for same sex marriage, the government will first of all have to legislate for there to be two forms of marriage - religious and civil. This is the only way I can see for there to be two separate systems and might, and I would emphasise that this is by no means certain, might allow for religions to continue with ceremonies which excludes same sex couples.

The law of unintended consequences

I was quite shocked early this year (I think it was) to read an account of a family law seminar at which a solicitor from a leading practice, who is himself a Muslim, stated that probably around 85% of Islamic marriages are not valid in English law.  I have since asked one or two practising Muslims of my acquaintance if this accords with their perceptions and they confirm that if anything, it's an underestimate.  Muslim couples are going through a ceremony at the mosque, which is valid in the religious context, but they are not then going through the formalities needed to register themselves as a married couple according to the law of the land.

This in turn means that women in particular are at risk of losing out.  As they have no recourse to the divorce courts of the land, they are left reliant on the sharia courts only if the "marriage" fails.  So by the back door, we find different communities living according to entirely different jurisdictions and principles.  I really struggle to think of anything more divisive!

All citizens of the country should be subject to the same law.  Everyone should have the same rights before the law and all should have identical responsibilities.  This, I believe, is of fundamental significance and is a bedrock of society.

I therefore would hotly oppose any proposal which separates and legislates for different forms of marriage.  There should be one form and one only.  There should be nothing to encourage the legitimisation of a separate religious status which deceives parties into thinking they have legal protection and recognition when they do not.  Indeed I would go further - I would much prefer to see legislation outlawing ceremonies which purport to be valid marriages when they simply aren't.

Are two separate jurisdictions feasible?

At present, we have one simple question at the outset of a divorce case - are the parties married? Without a marriage, there can't be a divorce.  Without a divorce, there can't be any invocation of or reliance upon the financial provisions of the Matrimonial Causes Act.

Now if we have separate forms of marriage, the courts risk becoming reliant on religious bodies deciding whether parties have been validly married or not.  And as we all know, religious authorities seem quite skilled at disagreeing even on the fundamentals of their own beliefs!  Is this really what we want?

The alternative is simply to say that as with the present day Islamic marriage, it will just have no legal recognition and no access to remedies on divorce.  For me, that would be the worst possible outcome.  Already we see at least one community withdrawing into itself in this area of law.  We should be legislating against this, not to encourage it.  A fractured and divided society is highly dangerous - both history and current affairs should make this entirely clear.  I think there needs to be a much more careful and reflective approach to this whole question.  If the price to be paid for this proposal is to drive certain communities to turn in on themselves and opt entirely out of the civil law, this would be far too costly.

Blog Disclaimer: Nothing in 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.

Friday, 1 June 2012

Contraception anybody? Or, if you're not married, how do you get your hands on his money?

I recently had my attention drawn to a case reported in 2010 about an unplanned pregnancy.  Of course there are any number of these happening all the time.  This one, however, ended up with the parents facing each other in the High Court.

DE v. AB

It's pretty hard to have sympathy for either parent here.  As Baron J explained: " It would seem that the mother was convinced that she was in love and that the father's intentions were honourable. He, on the other hand, considered the relationship to be casual and merely sexual."  Nothing too striking there then.  Just another commonplace story of a naive mother and uncaring father, it would seem.

"The mother, once pregnant, was anxious to have the child whereas the father was shocked when he learned about the impending birth. He advised her to obtain a termination."  And that's par for the course too.

Now there's an interesting freudian slip in the next line of the judgment, where Baron J, who was hearing the father's appeal against an order of a District Judge, refers to the mother as the wife - she wasn't!  That's very important.  She was entitled to be paid by the father solely for the benefit of their child - not in her own right.  So what happened first, unsurprisingly, was an application to the CSA.  It doesn't seem to have yielded very much though.  Apparently less than £300 per month was being paid at the time the High Court was dealing with the father's appeal.  Now I appreciate that plenty of parents would be delighted to receive child maintenance measured in the low hundreds each month but the other circumstances of the case rather change one's perspective on this.

The mother

Well, she had had a good job - she was 37 and had been earning £60,000 p.a. gross.  Trouble is, she had lost that job and was evidently struggling to find a new one.  Her mortgage, get this, had been £570,000 when she bought her house and she had increased it after losing her job and it now stood at £600,000.  Interest only, the mortgage cost £30,000 p.a., equivalent to the first £42,000 of income in its entirety.

By the time of the appeal, the mother also had credit card debts of over £83,000 and overdrafts of almost £28,000.  She had kept herself above water only with help from her family.  For myself, I should have thought that bankruptcy would have come as a relief, if only she had been advised to petition for it.

The father

The father was 39 at the time of the appeal.  He too had had a good job, from which he had been made redundant.  The redundancy payment, in 2004, was over £950,000, but it was a little unclear whether this was net or gross.  The father had a London house with a mortgage on it of £600,000.  Use the redundancy money to pay off the mortgage?  Nah - take a three year sabbatical from working instead!  Then have unprotected sex with mother at the end of the period and presto!  Furthermore, the father instead of paying off the mortgage, increased it to invest in a business!  By the time of the appeal, it looked as if the business had effectively failed, there would be no capital return and father was looking for a job.

Good grief!  It's not as if the parents weren't old enough to know better either.  They were in their mid thirties when all this was going on. Despite the realities of the situation, both of them told the judge that they wanted to keep their respective houses, though Lord alone knows how the mortgages were supposed to be paid.

The application

The mother applied to the court for provision under Schedule 1 of the Children Act.  Because she wasn't married to the father, she had no other claim in law.  So what can the court order?

1.  Maintenance, but only if the father (in this case) has income of more than £104,000 net p.a.
2.  A lump sum, or several lump sums.
3.  A transfer of property  to the child or to the Applicant.
4.  The settlement of property in trust for the child.

The whole point of this legislation is that it is not intended to do fairness between the parties - it is solely to make proper provision for a child. Unlike the Matrimonial Causes Act, there is no power to order the sale of property.  In the context of this case, that's quite important.

So what happened?  Well at first instance, the District Judge ordered:
1. Father to settle £250,000 on trust for the child for housing purposes.  This would revert to the father when the child reaches 18;
2. Father to pay mother a lump sum of £85,000.  £40,000 would repay her legal costs and the rest would go to reduce her debts.

Now the effect of this was that the father would have to sell his own house to be able to make the payment ordered.  The court couldn't make an order for sale, but the order to make a settlement effectively did the same.  The net proceeds of sale would amount to just £358,000, so the order would wipe most of his capital or put it beyond his reach for years to come.  So he appealed.

To a limited extent he was successful.  The High Court trimmed £45,000 off the total lump sum. This is how the High Court put it: "Assuming no further payment, the total sum which the father will have to pay from the £358,000-odd equity in his home is a total of £290,000. This will leave him with capital of £68,000 less his costs. That sum will provide him with a modest deposit for a flat for himself. Given his superior earnings and his current supposed wish to pursue work abroad, that, as I perceive it, is fair." (emphasis added).

So even when he was not married to the mother, the father is deprived of the use of the overwhelming majority of his capital for at least 16 years.  He won't recover it until he himself is 55 years old.  Still, unlike in a divorce case, he will at least be assured of recovering it one day.  By contrast, the mother finds herself guaranteed a modest house to live in until she is about 52 or so and then she has to rehouse using only her own resources.  Put it another way, she has 16 years or so to save up £250,000 to repay the father and given her saving habits up to now, that's more than a radical change of approach to life.

All this for want of a very basic precaution!

Blog Disclaimer: Nothing in 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.