My late mother had a rather odd ambition in life - she wanted to call for something. She used to read the newspapers and wonder aloud just how it was that public figures could "call for..." something or other. She always fancied having a go herself. You know the sort of thing, I'm sure - "today the Archbishop of Canterbury called for...a ban on green bin bags," or whatever. Sadly , so far as I am aware, my mother never quite fulfilled her ambition. I hope to do a little better.
Last week, the Chair of the Family Bar Council, Nick Cusworth QC, called for reform to divorce law. You can read about it here:
Nick Cusworth QC
Well today, Austin Kemp echoes his call for wide ranging modernisation of the Matrimonial Causes Act 1973 to give divorcing parties more certainty about what they can expect in terms of financial orders.
Perfect justice? Perfect confusion!
There are certain legal terms I deeply distrust. The court's inherent jurisdiction - "I don't know of any authority which specifies that a court can do this but I want this order anyway." A general equitable remedy - much the same as inherent jurisdiction actually. A broad discretion - "I can order pretty much what I want and don't have to explain why."
It's that last which I have the greatest problem with. The judges in the High Court and Court of Appeal seem to love their broad discretion, conferred by the Matrimonial Causes Act, but it makes the issue of how to advise divorcing couples pure misery at times. What is a party entitled to as their share of the matrimonial assets? Whatever is fair. And what is fair? What the judge on the day thinks is fair. Well that's a great help, that is.
The right to know what the law prescribes
The philosophy of criminal law is quite instructive here. The purpose of criminal law is not to punish offenders. It is to prevent certain unacceptable behaviours from happening in the first place. So it is of paramount importance that the law should be so clear and unambiguous that anyone can reasonably be expected to understand what it is that they should not be doing.
I don't see why the same shouldn't apply elsewhere. If the law is uncertain or unclear - and when it comes to finance in divorce, it's all of that - it seems almost to demand that only a judge can decide on what terms a couple separates. In my view, however, the courts should be the destination of last resort. To make court hearings unnecessary, it is vital that the present regime is radically reformed to give the clearest possible guidelines and rules to enable parties, with the aid of lawyers if necessary, to work out what each of them should have and what each of them should pay.
Yes, there will be some cases in which one or other of the parties can legitimately feel hard done by. But there is an old saying, "hard cases make bad law", and it happens to be true.
Community of Property
Nick Cusworth is promoting a law of community of property. This exists elsewhere in Europe - quite widely actually. What is says, broadly speaking, is that property I had before I was married belongs to me alone. Property I acquire through my efforts during the marriage is joint. Property I acquire after the marriage is over belongs to me alone. Property inherited by me during the marriage is mine.
Subject to one or two amendments, I think this is perfectly fair and should become the way we do divorce in England and Wales too. So what are the critical amendments?
Well, firstly, my park bench principle should never be infringed. If the outcome would leave one party living on a park bench where the other one has surplus resources, that's fundamentally unjust. So there will have to be a power of the court to make additional provision for one party based on need alone. Not fairness, not needs generously assessed, because we know where they lead. Just need.
The second departure is justified by what is referred to as the compensation basis. Some spouses give up lucrative careers in order to bring up their families. They allow the other spouse to prioritise their careers instead. In clear cut cases of this nature, and I emphasise the clear cut aspect, there can be justice in one party being required to continue to pay the other as compensation for losing the chance of that high earning career.
Apart from that, I don't see any inherent unfairness in a community of property regime and I see plenty to complain about in the system we have operated in England and Wales for the last forty years. Change is long overdue.
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, 5 July 2012
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 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, 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 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.
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 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, 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 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.
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 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.
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 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.
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 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.
Monday, 28 May 2012
Litigants in person 1
There's been a High Court case reported recently which has some interesting observations about people who represent themselves. You can read it here:
Maloney v. Filtons Ltd.
Now the case itself is a bit of a rare specimen which concerns the receiver of some property - not a commonly encountered set of facts or law (well, not for me at any rate!). The interesting bit of the judgment is in the preamble.
"Until shortly before the trial the Defendants were represented by solicitors and had Leading Counsel...", "Throughout the hearing the Defendants were represented by one of its Directors, a Mr Moshin Kothia. Mr Kothia presented his case extremely lucidly and tenaciously and I pay tribute to his efforts in that regard. However, Mr Kothia, of course, is not a lawyer and it follows that things were missed of a legal nature which would never have occurred to him as a non lawyer."
Now there's the rub. It rather looks as if the Defendants ran out of money to employ expensive lawyers shortly before the trial. Their director seems to have done really a very good job in the circumstances and the judge was clearly very complimentary towards him. However, it's a matter of simple commonsense that an experienced specialist lawyer is always going to be at a considerable advantage in court. If that were not the case and our profession were simply a matter of smoke and mirrors, we'd have been exposed as snake oil salesmen years ago. Please resist the urge to add an obvious comment about lawyers at this point!
"This case as this judgment will show demonstrates the difficulties a court faces at a trial when one party is unrepresented." "It is always difficult to assist the litigant in person without giving the represented parties the impression that they are being punished for having representation."
The judge explains how it falls to him to ensure that the Defendants' case is properly aired at trial where the Defendants don't have competent trial counsel. In other words, the judge has a great deal more to do. But as the judge makes clear, he cannot and must not descend into doing the Defendants' job for them. There's a very difficult balance to strike and inevitably there will be times when the balance ends up skewed in one direction or the other.
With the impending demise of Legal Aid for family cases, I confidently predict that the present trend for parties to appear in court without legal representatives is going to increase dramatically. It does absolutely nobody any favours. Self representing litigants, as I understand the new terminology is going to be, will be at a disadvantage. Judges will have to undertake far more case analysis and questioning of witnesses. Lawyers, as the Claimant's QC in this case, will have to tutor the lay party in court procedure at their own client's expense. New challenges for all - the timid should start looking for the exit doors right now!
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.
Maloney v. Filtons Ltd.
Now the case itself is a bit of a rare specimen which concerns the receiver of some property - not a commonly encountered set of facts or law (well, not for me at any rate!). The interesting bit of the judgment is in the preamble.
"Until shortly before the trial the Defendants were represented by solicitors and had Leading Counsel...", "Throughout the hearing the Defendants were represented by one of its Directors, a Mr Moshin Kothia. Mr Kothia presented his case extremely lucidly and tenaciously and I pay tribute to his efforts in that regard. However, Mr Kothia, of course, is not a lawyer and it follows that things were missed of a legal nature which would never have occurred to him as a non lawyer."
Now there's the rub. It rather looks as if the Defendants ran out of money to employ expensive lawyers shortly before the trial. Their director seems to have done really a very good job in the circumstances and the judge was clearly very complimentary towards him. However, it's a matter of simple commonsense that an experienced specialist lawyer is always going to be at a considerable advantage in court. If that were not the case and our profession were simply a matter of smoke and mirrors, we'd have been exposed as snake oil salesmen years ago. Please resist the urge to add an obvious comment about lawyers at this point!
"This case as this judgment will show demonstrates the difficulties a court faces at a trial when one party is unrepresented." "It is always difficult to assist the litigant in person without giving the represented parties the impression that they are being punished for having representation."
The judge explains how it falls to him to ensure that the Defendants' case is properly aired at trial where the Defendants don't have competent trial counsel. In other words, the judge has a great deal more to do. But as the judge makes clear, he cannot and must not descend into doing the Defendants' job for them. There's a very difficult balance to strike and inevitably there will be times when the balance ends up skewed in one direction or the other.
With the impending demise of Legal Aid for family cases, I confidently predict that the present trend for parties to appear in court without legal representatives is going to increase dramatically. It does absolutely nobody any favours. Self representing litigants, as I understand the new terminology is going to be, will be at a disadvantage. Judges will have to undertake far more case analysis and questioning of witnesses. Lawyers, as the Claimant's QC in this case, will have to tutor the lay party in court procedure at their own client's expense. New challenges for all - the timid should start looking for the exit doors right now!
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.
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