I see that my old friends at Baxter Caulfield have recently entertained themselves with a successful visit to the Court of Appeal over a decision of our local County Court in a property dispute between a woman and her fiance. You can find the judgment here:
Smith v. Bottomley and his company
Now on the face of it, this is, dare I say it, just a routine cohabitant dispute. The story seems to be that the parties formed an intimate relationship in 1992. They got engaged and had a child together, who was born in 1994. In 1995 they broke up and Ms. Smith moved out, never having quite got round to marrying. In 2001 or 2002, after having re-formed their relationship, they became engaged again but again never quite getting in front of a Registrar. In 2002, they bought a house together, with a trust deed specifying their respective shares. Mr. Bottomley got the greater share as he made the greater initial contribution to the purchase.
Now Mr. Bottomley had acquired other property down the years. In 1985 he had bought The Coach House, where he had lived and where he still carried on his business. He had bought some land adjoining it in 1995 and in 2000 he bought a property called The Mill. The Mill was transferred to a company Mr. Bottomley formed in 2002 and later in the same year, the company sold it for a substantial profit.
Ms. Smith claimed "When I agreed to move back in with him again he said he would put
everything 50/50. The agreement covered everything. He said he wanted to
give me peace of mind. Coach House Properties [the Company] was [Mr Bottomley]. He said everything we have is 50/50; he did not go into detail. The company was Mr Bottomley."
Why is this important? Well, because they weren't married of course. Had they been, the legal title of the assets would be relatively academic as the court in divorce proceedings possesses the power to order the transfer of ownership from one spouse to the other, or the sale of property and payment of a lump sum. They weren't, so it couldn't. All Ms. Smith would be entitled to would be what she owned as a matter of law.
Once the company had sold The Mill, it bought The Barn. It still owned this at the time when everything came to an end. In 2010, the parties separated again, this time for good. Ms. Smith brought an action claiming a half share of the Barn. There are two interesting legal points in the Court of Appeal decision. The first, which they fail to provide an answer for, is about detriment. A promise, on its own, is not binding against the person who makes it. For it to be enforceable, the recipient of it needs to show that she did something to her detriment in reliance on the promise. So what did Ms. Smith do which was detrimental to her? "she (i) agreed to marry Mr Bottomley and (ii) gave up
her independent accommodation, in which she had lived since the end of
her first period of co-habitation with Mr Bottomley." Well, that was her case, anyway.
How can it be argued that agreeing to marry someone amounts to detriment? If she gave up a promising career to further the engagement, that might make some sense. If she gave away property of her own in reliance on her new-found joint ownership, that might too. Just getting engaged - well, I can understand why the judge at first instance seems to have skated straight over it in his judgment. How anyone seriously thought that could be good enough is something I struggle with. In fact, the judge ignored completely the lengthy submissions from both barristers on the subject of detriment but it is an essential element of the test to decide if Ms. Smith had acquired any ownership of the property. Frustratingly though, the Court of Appeal ducks this very issue itself, saying, "It is not necessary in this judgment to consider the distinct question whether, in any event, a promise to marry could in principle constitute sufficient detrimental reliance to found a claim to a constructive trust." I really don't see that it's so difficult.
Likewise, while they lived apart, Ms. Smith rented a house to live in. When they reconciled, she gave up the tenancy but in what way was this to her detriment? Instead of paying rent for accommodation, there is nothing to suggest that Mr. Bottomley was charging her to live in the house he owned. Surely she was better off, not worse off? No detriment means no claim and this is well-established law.
The second interesting element was the ownership of The Barn. It didn't belong to Mr. Bottomley - it belonged to his company. As we have all recently been reminded, in no uncertain terms, by the Supreme Court no less, (Prest v. Petrodel), the two must be distinguished from each other. Even on Ms. Smith's account of things, Mr. Bottomley made the promise, not the company. The Court considered Petrodel and noted that it could not be said that Mr. Bottomley's company simply held The Barn on trust for him. So for this second reason, the appeal was allowed. Now it may seem a little too unusual to have wider application, but in recent times, particularly in relation to high value properties, companies have been increasingly used to own real property. Sale of company shares do not carry stamp duty in the way that property transactions, so it has clear tax advantages. We may actually see more of these complications cropping up in the future and Prest v. Petrodel being applied in circumstances which weren't envisaged at the time.
P.S. As an aside, I was relieved on a professional level to see the Court of Appeal graciously deciding that Mr. Bottomley's solicitors should not be criticised for failing to point out a deficiency in Ms. Smith's pleading of her case. It's bad enough making sure your own client's case is properly put without being expected to argue the other side's case too! After all, we do have an adversarial system of justice and solicitors are obliged to act in the best interests of their client, not their opponent.
P.P.S Just on reflection, perhaps the most surreal part of this case is where the Court of Appeal considers the issue of agreeing to marry and detriment. In deciding firmly to sit on the fence, the Court said, " The answer is likely to depend upon the particular
factual circumstances: for instance, did acceptance of one offer of
marriage preclude acceptance of another, competing offer which
foreclosed the offeree from protecting his or her financial position
more fully by accepting the competing offer?" How Jane Austen is that? I have a vision of a young lady pondering the many offers from her various suitors, comparing their prospects and estates before making up her mind whose is the most appealing! Was this really happening in the 20th century, still less the early 21st?
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.
Showing posts with label cohabitation. Show all posts
Showing posts with label cohabitation. Show all posts
Tuesday, 30 July 2013
Friday, 30 November 2012
In praise of insurers - well, sort of.
Family lawyers rarely encounter legal expenses insurance. It's been overlooked because most disputes within a family are expressly excluded by insurers. Doubtless this is on the basis that with over 40% of marriages ending in divorce, the chances of the insurer having to pay out are simply too great. After all, insurance is about taking a premium for something that most likely isn't going to happen. I was once told that just 5% of policy holders die during the term of a term assurance policy - perhaps taking out a policy is the best health measure we can all take!
By contrast, the dreaded ambulance chasers, personal injury lawyers, are well acquainted with searching out before the event insurance policies. They come attached to household insurance policies, credit cards and occasionally other policies. What they generally cover is all manner of civil disputes. So if you end up in a boundary dispute with your neighbour (heaven forbid!), then your legal fees, and often your liability for your neighbour's if you were to lose, would be paid for you.
However, for the family there is some limited but potentially important benefit for their clients. Two types of action can on occasion be funded by legal expenses policies. In the first place, many policies cover Inheritance Act claims. These enable a family member of someone who has died to make a claim against their estate in the event that they are left with little or nothing from the estate. They aren't commonplace but for people who depended financially on a relative, they can be vital. Because they are litigated in the civil courts instead of family courts, the normal rule on legal costs is that the loser pays. This can be a major deterrent to someone who is already facing financial hardship after the death of a loved one. With legal expenses cover, both sides costs are usually protected, up to a specified limit. In my experience, that limit is generally more than enough to reduce the risk to virtually nothing.
More rarely, there may be cover for property disputes between cohabitants. Often this is excluded from policies but as they also take place in the civil and not the family courts, occasionally they can be covered. You have to look closely at just how any policy exclusion has been worded. Again, if you can use your legal expenses policy, it can be of huge benefit as costs generally get deposited on the loser in these cases too.
So, a word to the wise - always accept legal expenses cover when you are offered it. Most people won't need it but then again, it's cheap and for those who do need it, it can be the best few pounds you ever spend.
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.
By contrast, the dreaded ambulance chasers, personal injury lawyers, are well acquainted with searching out before the event insurance policies. They come attached to household insurance policies, credit cards and occasionally other policies. What they generally cover is all manner of civil disputes. So if you end up in a boundary dispute with your neighbour (heaven forbid!), then your legal fees, and often your liability for your neighbour's if you were to lose, would be paid for you.
However, for the family there is some limited but potentially important benefit for their clients. Two types of action can on occasion be funded by legal expenses policies. In the first place, many policies cover Inheritance Act claims. These enable a family member of someone who has died to make a claim against their estate in the event that they are left with little or nothing from the estate. They aren't commonplace but for people who depended financially on a relative, they can be vital. Because they are litigated in the civil courts instead of family courts, the normal rule on legal costs is that the loser pays. This can be a major deterrent to someone who is already facing financial hardship after the death of a loved one. With legal expenses cover, both sides costs are usually protected, up to a specified limit. In my experience, that limit is generally more than enough to reduce the risk to virtually nothing.
More rarely, there may be cover for property disputes between cohabitants. Often this is excluded from policies but as they also take place in the civil and not the family courts, occasionally they can be covered. You have to look closely at just how any policy exclusion has been worded. Again, if you can use your legal expenses policy, it can be of huge benefit as costs generally get deposited on the loser in these cases too.
So, a word to the wise - always accept legal expenses cover when you are offered it. Most people won't need it but then again, it's cheap and for those who do need it, it can be the best few pounds you ever spend.
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.
Thursday, 17 May 2012
There is such a thing as common law marriage!
I give a Michael Caine "not many people know that" award to James Turner QC, who posted on a recent linkedin discussion I started (you can view it here: cohabitation cases) and confounded me with something I genuinely didn't know - there are actually legally valid marriages which are not compliant with the Marriage Act or are recognised foreign marriages. Nope, I never knew that.
However, don't get too excited about this. It is no help at all for those who simply live together in England and Wales. It's one of those very rare specimens which is designed for exceptional cases.
" It relates to a marriage that has taken place..."
In other words, there is something more than just living together. There has to be some event which signifies that a marriage has taken place.
"that has taken place otherwise than in accordance with the requirements of the lex loci celebrationis..."
But whatever marriage there was doesn't comply with the law relating to marriages in the place where occurred.
" in circumstances where it would offend public policy to require compliance with the relevant local law..."
This isn't clear until you consider the example given - two people getting married in a concentration camp. It would be outrageous to say that if you didn't go the register office, you couldn't be married, in those circumstances!
Now all of this may sound pretty academic here in the UK. In the rest of the world, however, it may be far from esoteric. In some jurisdictions, marriage between people of different religions or ethnic groups are or have been forbidden. If such a couple reaches this country - seeking asylum, for example - it is entirely right that English law should recognise their marriage. So it does. However, where there is nothing to prevent a couple from marrying in their own country or circumstances but they just don't do so, English law treats them as being unmarried, and why not?
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.
However, don't get too excited about this. It is no help at all for those who simply live together in England and Wales. It's one of those very rare specimens which is designed for exceptional cases.
" It relates to a marriage that has taken place..."
In other words, there is something more than just living together. There has to be some event which signifies that a marriage has taken place.
"that has taken place otherwise than in accordance with the requirements of the lex loci celebrationis..."
But whatever marriage there was doesn't comply with the law relating to marriages in the place where occurred.
" in circumstances where it would offend public policy to require compliance with the relevant local law..."
This isn't clear until you consider the example given - two people getting married in a concentration camp. It would be outrageous to say that if you didn't go the register office, you couldn't be married, in those circumstances!
Now all of this may sound pretty academic here in the UK. In the rest of the world, however, it may be far from esoteric. In some jurisdictions, marriage between people of different religions or ethnic groups are or have been forbidden. If such a couple reaches this country - seeking asylum, for example - it is entirely right that English law should recognise their marriage. So it does. However, where there is nothing to prevent a couple from marrying in their own country or circumstances but they just don't do so, English law treats them as being unmarried, and why not?
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.
Thursday, 10 May 2012
If ever tha does owt for nowt, allus do it for theesen!
I ranted a little while ago about a Mail article which suggested that it was easy to fall foul of a property claim from your unmarried partner. I strongly disagreed- see here just to remind yourself:
what can the Daily Mail teach us about Family Law?
A classic example of why this just isn't so has been reported in the Court of Appeal. You can read the report here:
Geary v. Rankine
It's a commonplace story - one I've heard in different minor variants many times over the years. Mrs. G formed a relationship with Mr. R. They began to live together. They had a child together. A few years after they got together, Mr. R bought a business - a guest house. He bought it with his savings and in his sole name. Clearly there were two distinct assets here - the premises and the guest house business which operated from it. After a little while, the two of them moved to live at the guest house and ran the business there. 12 or 13 years later, the parties separated. Mrs. G claimed that she was entitled to part ownership of the guest house.
The Business
What Mrs. G said was that she had worked unpaid in running the guest house. The judge found that she had cooked, cleaned and done much of the paperwork. She described Mr. R as being controlling - she only got money if she asked for it and needed it. Mrs. G claimed that she was a partner in the business and also had joint ownership of the guest house itself. The judge decided that she was not a partner in the business. She had not been held out as one, the accounts didn't show her to be one, she hadn't received drawings and there were other reasons and explanations which were very much to the contrary.
If you work for someone you love, that does not of itself place you in a business relationship with them. Working for them for nothing makes sense in its own way. Family income is used for the benefit of the family. If Mr. R's income was used to provide for the family, working for nothing in his business increases the benefit to the family. What it doesn't do is create any legal rights or obligations.
The Building
Mrs. G said there was a common intention that she would have an interest in the building itself. She said that although it had been bought originally for Mr. R alone, that had changed. What the Court of Appeal emphasised here was that it had to be a shared intention - i.e. both of the parties needed to be agreed on it. Mrs. G pointed out that she had given up her job in London at very short notice to go and live at the guest house to help get it back on its feet. She said that that was evidence of a common intention that they would operate and own the business together. The judge who decided the case and the Court of Appeal were agreed that that simply wasn't enough. Whatever she thought was the case, she had to prove that Mr. R thought the same and that was always going to be very difficult indeed.
Why bring the case?
Reading between the lines, it seems to me that there were two main motivations for Mrs. G maintaining that she should receive some of Mr. R's property. The first was that she deserved it. She had worked very hard over the years and did things which seem to have been beyond Mr. R - like paperwork, for example! So she had, but that isn't how this branch of law works. If they had been married, the court would have had no problem in saying that they had both made equal contributions to the family welfare, he by buying the place, she by working in it. That's fine where s.25 of the Matrimonial Causes Act is in play but it's irrelevant if it's not.
The second seems to me to be that Mr. R was a difficult man to live with. He was controlling and mean with money. In other words, he should be penalised for not being nice enough. Again, that's just not relevant. Even in divorce cases, although we see that sort of reasoning often, it cuts no ice at all.
Taken together, these may make Mrs. G aggrieved but they don't amount to a legal claim.
The Lesson
If ever tha does owt for nowt...... Just because someone else has benefited from your hard work, that doesn't mean you have a claim on their property. So if you're going to work hard, make sure that you get something for it! Don't, whatever you do, rely on the good nature and honesty of the person you do it for. That's what generates cases like this and the legal fees which accompany them. I have to say, this case really doesn't set any new precedents and I find it hard to see how it ended up running the distance in the first place.
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.
what can the Daily Mail teach us about Family Law?
A classic example of why this just isn't so has been reported in the Court of Appeal. You can read the report here:
Geary v. Rankine
It's a commonplace story - one I've heard in different minor variants many times over the years. Mrs. G formed a relationship with Mr. R. They began to live together. They had a child together. A few years after they got together, Mr. R bought a business - a guest house. He bought it with his savings and in his sole name. Clearly there were two distinct assets here - the premises and the guest house business which operated from it. After a little while, the two of them moved to live at the guest house and ran the business there. 12 or 13 years later, the parties separated. Mrs. G claimed that she was entitled to part ownership of the guest house.
The Business
What Mrs. G said was that she had worked unpaid in running the guest house. The judge found that she had cooked, cleaned and done much of the paperwork. She described Mr. R as being controlling - she only got money if she asked for it and needed it. Mrs. G claimed that she was a partner in the business and also had joint ownership of the guest house itself. The judge decided that she was not a partner in the business. She had not been held out as one, the accounts didn't show her to be one, she hadn't received drawings and there were other reasons and explanations which were very much to the contrary.
If you work for someone you love, that does not of itself place you in a business relationship with them. Working for them for nothing makes sense in its own way. Family income is used for the benefit of the family. If Mr. R's income was used to provide for the family, working for nothing in his business increases the benefit to the family. What it doesn't do is create any legal rights or obligations.
The Building
Mrs. G said there was a common intention that she would have an interest in the building itself. She said that although it had been bought originally for Mr. R alone, that had changed. What the Court of Appeal emphasised here was that it had to be a shared intention - i.e. both of the parties needed to be agreed on it. Mrs. G pointed out that she had given up her job in London at very short notice to go and live at the guest house to help get it back on its feet. She said that that was evidence of a common intention that they would operate and own the business together. The judge who decided the case and the Court of Appeal were agreed that that simply wasn't enough. Whatever she thought was the case, she had to prove that Mr. R thought the same and that was always going to be very difficult indeed.
Why bring the case?
Reading between the lines, it seems to me that there were two main motivations for Mrs. G maintaining that she should receive some of Mr. R's property. The first was that she deserved it. She had worked very hard over the years and did things which seem to have been beyond Mr. R - like paperwork, for example! So she had, but that isn't how this branch of law works. If they had been married, the court would have had no problem in saying that they had both made equal contributions to the family welfare, he by buying the place, she by working in it. That's fine where s.25 of the Matrimonial Causes Act is in play but it's irrelevant if it's not.
The second seems to me to be that Mr. R was a difficult man to live with. He was controlling and mean with money. In other words, he should be penalised for not being nice enough. Again, that's just not relevant. Even in divorce cases, although we see that sort of reasoning often, it cuts no ice at all.
Taken together, these may make Mrs. G aggrieved but they don't amount to a legal claim.
The Lesson
If ever tha does owt for nowt...... Just because someone else has benefited from your hard work, that doesn't mean you have a claim on their property. So if you're going to work hard, make sure that you get something for it! Don't, whatever you do, rely on the good nature and honesty of the person you do it for. That's what generates cases like this and the legal fees which accompany them. I have to say, this case really doesn't set any new precedents and I find it hard to see how it ended up running the distance in the first place.
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.
Tuesday, 1 May 2012
Is marriage a good thing? Should it be encouraged?
There's a lot of excitement about Sir Paul Coleridge and his Marriage Foundation at the moment. Sir Paul is a High Court judge in the Family Division and sits in very heavy weight family finance and children cases. He sees the proliferation of divorce as a pernicious and damaging feature of modern society, which needs to be rolled back. The Foundation he has started is a first step in reestablishing marriage as a durable and indeed permanent relationship. Well, that's the plan anyway.
Just have a look at how the Telegraph and Mail have presented the new initiative:
The Telegraph
The Daily Mail
Let me put my cards face up on the table - I've been married for just a few months short of 25 years now and I'm in no kind of hurry to change that. However, for over 16 years I have been a divorce and family lawyer for at least 50% of my working day, so I'm not exactly unfamiliar with why marriages fail. I regard divorce as being a bad thing - an admission of failure. However, I am entirely certain that sometimes it's an entirely necessary thing. Often I have wondered how it is that a client has persevered with a marriage which has been clearly very damaging to him/her and, very often, her/his children. Abusive relationships are not something to hang onto and in fact we know that abusive behaviour is learned and cascades down the generations if someone doesn't take action to break the cycle.
The truth is, some people really try hard to maintain a marriage and others just have little if any real reason to bail out. One thing I am certain of - by the time people reach me, it's far too late to put the marriage back together, 95 times out of 100. As a result, I simply don't sit in judgment on my clients. That's not my function. I don't have to believe in the inherent justice of my client's cause to do a really good, professional job. I'll do that for anyone at all. Some people have difficulty understanding that - they want me to affirm my belief and personal commitment to their cause. I can't do that because if I start doing so, I will end up assessing and judging my clients and that wouldn't be right. I'll always advise them on the strengths and weaknesses of their case but I won't pass moral judgment on the choices they're making.
Now whatever your marital status, you'll have your own take on things. At the other end of the spectrum from the Daily Mail lies Natasha Phillips of Researching Reform. She comments on it here:
Researching Reform
So in the blue corner we have the Mail saying that this judicial initiative is something the country has needed for years and in the red corner we have another commentator saying that it renders Sir Paul unfit for judicial office! Quite a polarisation, you may think.
Unfit for the profession.
I confess that I am becoming more and more troubled by the number of occupations which are now deemed to be closed to people who in good conscience find themselves either uncomfortable with a part of the duties of the job or find them unconscionable altogether. Midwives who are against termination cannot seek duties which do not include management of abortions, registrars who do not approve of civil partnerships likewise and now judges who are less than starry eyed about divorce seem to be in the firing line.
If I were disabled, I would have a right to expect reasonable adjustments by my employer to enable me to continue working, and this might include allocation of duties. If an employer institutes a policy which prevents female employees from accessing some sort of benefit, for example because they generally have greater family responsibility, they run the risk of being found to have acted in a discriminatory fashion and be liable for compensation. However, if you are found not to share the opinions of our liberal elite, you run the risk of being deprived of your very livelihood. Natasha, in reply to one comment on her post, is saying that the mere fact that Sir Paul has a jaded view of divorce means that he is clearly incapable of implementing the law and complying with his judicial oath. Therefore, he's got to go.
I'm sorry but I just can't agree. I worry that we're losing the right to disagree. Why can't we allow people some scope to be who they are? Why is it vital to impose our own world view on others? That's the very antithesis of liberal democracy, so why is it happening? Why on earth is it so unforgivable to promote healthy and fulfilling marriage, especially where the proponent is someone who has direct, relevant and downright comprehensive knowledge of the alternatives? So not everyone is going to succeed in building those marriages - we divorce lawyers are there to help them. But there's no reason why we shouldn't aspire to the best and do anything we can to build and support it, is there?
Judges should be passive
What I think Natasha wants to forbid is judges becoming proactive and she is insisting that they remain reactive. On her terms, a judge is allowed only to deal with the individual and not the general. Sir Paul is effectively saying that his conviction is that a good marriage is a good thing and benefits society generally and children in particular. This may be based substantially on his experience as a judge and dealing with the unfortunate individuals who have appeared before him, which would mean that he is applying his knowledge of the particular to draw conclusions of general application. Why should he not be entitled to do this? Having seen first hand the misery which broken relationships bring, why should Sir Paul not be entitled to try to do something to help people avoid them?
Other people's insecurities
The real issue with Sir Paul's Foundation, it seems to me, is that it treads on a lot of people's corns. Quite a number of people with failed marriages seem to take it as an implied personal criticism if someone raises marriage as an ideal. Likewise, there seems to be extreme insecurity with those who cohabit and are not married. Of course in the latter case, insecurity is justified as their legal position is hugely different from those who are married. I suppose it's the idea that society might sit in judgment on our relationships and their failures and say that we have fallen short of the mark which makes some react with what verges on hostility. And in the face of hostility, I don't have the most optimistic feelings about Sir Paul's chances of engaging with the unconvinced!
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.
Just have a look at how the Telegraph and Mail have presented the new initiative:
The Telegraph
The Daily Mail
Let me put my cards face up on the table - I've been married for just a few months short of 25 years now and I'm in no kind of hurry to change that. However, for over 16 years I have been a divorce and family lawyer for at least 50% of my working day, so I'm not exactly unfamiliar with why marriages fail. I regard divorce as being a bad thing - an admission of failure. However, I am entirely certain that sometimes it's an entirely necessary thing. Often I have wondered how it is that a client has persevered with a marriage which has been clearly very damaging to him/her and, very often, her/his children. Abusive relationships are not something to hang onto and in fact we know that abusive behaviour is learned and cascades down the generations if someone doesn't take action to break the cycle.
The truth is, some people really try hard to maintain a marriage and others just have little if any real reason to bail out. One thing I am certain of - by the time people reach me, it's far too late to put the marriage back together, 95 times out of 100. As a result, I simply don't sit in judgment on my clients. That's not my function. I don't have to believe in the inherent justice of my client's cause to do a really good, professional job. I'll do that for anyone at all. Some people have difficulty understanding that - they want me to affirm my belief and personal commitment to their cause. I can't do that because if I start doing so, I will end up assessing and judging my clients and that wouldn't be right. I'll always advise them on the strengths and weaknesses of their case but I won't pass moral judgment on the choices they're making.
Now whatever your marital status, you'll have your own take on things. At the other end of the spectrum from the Daily Mail lies Natasha Phillips of Researching Reform. She comments on it here:
Researching Reform
So in the blue corner we have the Mail saying that this judicial initiative is something the country has needed for years and in the red corner we have another commentator saying that it renders Sir Paul unfit for judicial office! Quite a polarisation, you may think.
Unfit for the profession.
I confess that I am becoming more and more troubled by the number of occupations which are now deemed to be closed to people who in good conscience find themselves either uncomfortable with a part of the duties of the job or find them unconscionable altogether. Midwives who are against termination cannot seek duties which do not include management of abortions, registrars who do not approve of civil partnerships likewise and now judges who are less than starry eyed about divorce seem to be in the firing line.
If I were disabled, I would have a right to expect reasonable adjustments by my employer to enable me to continue working, and this might include allocation of duties. If an employer institutes a policy which prevents female employees from accessing some sort of benefit, for example because they generally have greater family responsibility, they run the risk of being found to have acted in a discriminatory fashion and be liable for compensation. However, if you are found not to share the opinions of our liberal elite, you run the risk of being deprived of your very livelihood. Natasha, in reply to one comment on her post, is saying that the mere fact that Sir Paul has a jaded view of divorce means that he is clearly incapable of implementing the law and complying with his judicial oath. Therefore, he's got to go.
I'm sorry but I just can't agree. I worry that we're losing the right to disagree. Why can't we allow people some scope to be who they are? Why is it vital to impose our own world view on others? That's the very antithesis of liberal democracy, so why is it happening? Why on earth is it so unforgivable to promote healthy and fulfilling marriage, especially where the proponent is someone who has direct, relevant and downright comprehensive knowledge of the alternatives? So not everyone is going to succeed in building those marriages - we divorce lawyers are there to help them. But there's no reason why we shouldn't aspire to the best and do anything we can to build and support it, is there?
Judges should be passive
What I think Natasha wants to forbid is judges becoming proactive and she is insisting that they remain reactive. On her terms, a judge is allowed only to deal with the individual and not the general. Sir Paul is effectively saying that his conviction is that a good marriage is a good thing and benefits society generally and children in particular. This may be based substantially on his experience as a judge and dealing with the unfortunate individuals who have appeared before him, which would mean that he is applying his knowledge of the particular to draw conclusions of general application. Why should he not be entitled to do this? Having seen first hand the misery which broken relationships bring, why should Sir Paul not be entitled to try to do something to help people avoid them?
Other people's insecurities
The real issue with Sir Paul's Foundation, it seems to me, is that it treads on a lot of people's corns. Quite a number of people with failed marriages seem to take it as an implied personal criticism if someone raises marriage as an ideal. Likewise, there seems to be extreme insecurity with those who cohabit and are not married. Of course in the latter case, insecurity is justified as their legal position is hugely different from those who are married. I suppose it's the idea that society might sit in judgment on our relationships and their failures and say that we have fallen short of the mark which makes some react with what verges on hostility. And in the face of hostility, I don't have the most optimistic feelings about Sir Paul's chances of engaging with the unconvinced!
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.
Wednesday, 28 March 2012
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:-
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!
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.
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.
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."
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.
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