Ouch! That hurt.

A case called F v. F has just been reported in the High Court before Mrs. Justice Macur.  It starts with the following:

" This ancillary relief dispute has been the subject of 3 substantive directions hearings and conducted at final hearing by specialist matrimonial leading and junior counsel on each side, instructed by specialist matrimonial solicitors and costing the husband and wife £2.4 million between them. Both the husband and wife have been surrounded by a legal entourage of at least 5 personnel throughout the 8 days of proceedings in court. I regret that these statistics have not ensured compliance with rules of evidence, the Pre-action Protocol and Family Proceedings Rules 2010 or the spirit of Practice Direction 25A effective for proceedings commenced post 6 April 2011."  (my emphasis throughout)

There's no way of avoiding it - that is, to say the least, highly embarrassing for any professional involved in the case.  Then it gets worse:

" In these circumstances the raised emotions, distrust, entrenched positions and consequent waste of court time were entirely predictable. The position has not been ameliorated by the apparent disinclination of Counsel to communicate throughout the hearing save in the Court room itself culminating in the necessity for me to direct the exchange of written closing submissions before I was addressed on the same since otherwise "the usual practice" of providing them just at the moment when the address began would have been followed.  It is difficult to conceive that either party can have their expectations realistically managed in such a scenario."

So it continues throughout a truly biting judgment, much of it entirely predictable, some of it specific to the case:

" The wife's budget for the purpose of establishing her maintenance needs was opened as "aspirational". It is entirely unrealistic and without historical basis or reasonable future projection."  Nothing terribly new there, then. 

" I refused permission to admit as evidence in the case that part of the wife's sole expert addendum report which dealt with his opinion of "indexation" of the 1993 value of Franklin. It was not sanctioned by Court order nor considered in the pre-trial review, nor consented to by those representing the husband. It was triggered by the invitation of the wife's leading Counsel to re-consider a concession made in the first expert meeting. Its inclusion within Mr Mathew-Jones addendum report was tantamount to ambush reminiscent of the approach taken to the valuation of the life interests in Peyton Place. The husband was not in a position to gainsay the opinion expressed by seeking his own expert in the time frame imposed by receipt of the report and the date of the final hearing."  So, ambushed by an expert report for which permission had not been sought or given - not really a matter of unusual complexity, surely?

" I make clear, as I did on several occasions during the hearing, that I dismiss any hearsay evidence from my mind.  The contents of solicitors' notes, the parties' accountant's notes or the memory of the managing director as to what the husband said to them at the time of making the agreement are inadmissible as evidence of the truth of the contents of the husband's conversations/instructions. The maker of the statements, the husband, was always known to be available and has been called to give evidence. The fact of the conversation is only relevant to rebut any allegation of recent fabrication, which is not alleged here. It is therefore inadmissible. Regard to these rules of evidence would have obviated the need to produce the voluminous documents or associated witnesses." 

"The fact that I have determined the issue in favour of the husband does not deflect my criticism of the husband's solicitors for failure to consider the need to make on-going "full and frank disclosure" of documents relevant to issues in the case.  It is not for Leading Counsel for the husband to pronounce the issue "closed" or to rely upon the lack of specific direction for disclosure of such documents at the pre-hearing review."

" No doubt in support of this proposal the wife attempted to adduce evidence of Dr Simon Turner, a "strategic consultant". I requested Mr Pointer QC to reconsider his expressed intention to call this witness. He did so. I make clear that I would have refused to admit the evidence on a number of bases:

(i) no permission was sought/granted for it to be admitted as an expert report; (ii) it expresses opinion whilst expressly acknowledging lack of expertise;
(iii) it expresses opinion upon company issues which are irrelevant to my consideration and, I may say inherently offensive in the context of a very successfully run company and likely to engender resentment between present board members and the wife who has sought to introduce it. My decision on the outcome of the share agreement is not influenced by the business experience/acumen of the wife nor her ideas for the future of the company. In short a pointless, costly and counter-productive exercise."

And then perhaps worst of all....

" Mr Pointer QC in his closing submissions is dismissive of the exercise conducted by Mr Adams-Cairns. For the reasons outlined in paragraph 57 above I agree there is no question but that this expensive exercise was futile. This may have explained why no steps were taken by those representing the wife to seek clarification of the joint expert report but for the fact that the wife attempted to produce a sole "expert" report on this issue into evidence on the first day of the hearing without any notice to the husband and subsequently dispatched that report to Mr Adams-Cairns when I had refused to admit it. This behaviour, whether in ignorance, neglect or disobedience of civil/family rules of procedure amounts to malpractice and has the effect of conflating raised emotions and suspicion. There is absolutely no mitigation for the wife's solicitor sending to Mr Adams-Cairns the report that was ruled inadmissible. Its only purpose, objectively viewed, would be to seek to influence the opinion of Mr Adams-Cairns."

So here's my question - what exactly did the husband and wife get for their £2.4m legal fees?

One of the solicitors in this case has on its website not one but two articles headed "What makes a top divorce lawyer?"

Well, according to Macur J, perhaps the following?

1.  Disregard for basic rules of evidence - i.e. the hearsay rule;

2.  Disregard for the correct procedure for using expert evidence;

3.  A failure to comply with the pre-action protocol for finances on divorce;

4.  A failure to ensure the provision of full and frank disclosure;

5.  A failure to generate realistic expectations;

6.  Malpractice;

7.  Pointless, costly and counterproductive exercises.

I know very well from first hand experience just how demanding some wealthy clients can be.  It is often unfair to impute to the professional representatives the unrealistic or obstinate stances adopted by their clients.  However, when you spend six and even seven figures on your lawyers, listening to a judgment like this one must be an enormously dispiriting and even shattering experience.  As for how the lawyers felt......

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.

When it comes to generosity, I’m with Scrooge – almost!

Judges coin phrases and lawyers seize on them.  They adopt them with the fervour that a devout follower of religion applies to the words of his or her chosen prophet.  They seek to apply them in any given situation.  And often there comes a rude awakening, when another judge dismisses the earlier legal catchphrase and says that it was always misconstrued, misapplied or simply wrong in the first place.

One such phrase, to which I am now completely sensitised, is "needs, generously assessed".  It grates my nerves because I have a view about generosity.  I simply don't see it as being my place in life to be generous with someone else's money!  Equally, I am completely unconvinced that the law empowers any judge to be either.  The phrase first appeared in the notorious Miller and MacFarlane cases back in 2006.  The House of Lords, no less, said that part of the court's job in reaching a fair financial settlement between a husband and wife was to determine the needs of the parties, "generously assessed".

Now it's very basic to say that it's s.25 of the Matrimonial Causes Act 1973 which sets out what the court has to take into account when carrying out the job of crafting a suitable order.  The way the section refers to needs is this, to be exact:

"the financial needs, obligations and responsibilities which each of the parties to the marriage has..."

In other words, there's no mention of generosity!  Now we've seen previous elevations of judicial commentary to almost the status of holy writ (well statutory status anyway) previously.  For example, for 24 years the phrase "reasonable requirements" held sway, following something said in a case called O'D v. O'D in 1976.  The House of Lords killed that phrase in 2000 in the famous and revolutionary case of White v. White.  The Court said, "Confusion might be avoided if courts were to stop using the expression 'reasonable requirements' in these cases..."  By these cases, it meant big money cases in which there was more than enough in the pot to meet both parties needs, with a surplus left over.

Now the oddity is this, it was the same case which actually coined the phrase I so dislike -

"The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative." (my emphasis).  The Court wasn't approving that term - if anything, it was critical of the concept and its use.

As a result, I was encouraged to have drawn to my attention a case called Robson v. Robson.  Here, the Court of Appeal looked at exactly the phrase used in White v. White and added as follows:
"Confusion will be avoided if resort is had to the precise language of the statute, not any judicial gloss placed upon the words, for example by the introduction of "reasonable requirements" nor, dare I say it, upon need always having to be "generously interpreted". (my emphasis)

I therefore live in hope that the day will come when I can forget this latest judicial gloss and what it might mean for those few very wealthy clients, whose marriages, sadly, have run their course.


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.

Now an award winning divorce lawyer!

I've often noted, with a cynical sneer, those businesses who insist on calling themselves award winning.  Lawyers, of course, are not immune to this form of vanity publishing.  They hold their own private awards dinners at which they honour each other in sometimes abstruse and downright arcane categories.  The Oscars for legal geeks, but without tributes to make up artists!  I suppose that if I were awarded something by my industry peers, I'd suddenly lose my cynicism and take pride in the fact that members of my own profession held me in conspicuously high regard - but that hasn't happened yet.  Shame.

However, this weekend I was honoured by the people who count far more than your professional peers - the sort of people who actually use the professional services of divorce lawyers.  So if you look at the following link, you should find me fairly easily - I'm the one called jonathancj, obviously.

 Wikivorce awards

What's Wikivorce all about?

Wikivorce came about when its founder went online to look for information to help him with his own divorce and found himself having to put together fragments of information from a variety of sources.  He decided that it would have been far more helpful if they had all been in one place and set himself the task of constructing that resource.  Quite quickly it moved from being just an encyclopedia of information to a community of people talking about what they had learned from their own relationship failures and passing on useful information.  The great benefit of this is that it has moved to being more of a tailored advice service, albeit informal in nature, rather than leaving it to individuals to try to apply generic information to their own specific circumstances.  It does not hold itself out as giving legal advice but most of the members of the site have themselves experienced separation and can help with the emotional side of the separation as well as the practical side.

And why is it important?

At the awards dinner, the site founder highlighted the effects of the withdrawal of legal aid from family law.  More and more people will be trying to negotiate quite a complex web of law and procedure without the aid of a specialist who is familiar with how it all fits together.  Where on earth can they turn?  How can they learn what to expect at a first hearing?  Is mediation really a good idea?  What is a hearing really like?  Who can they ask these questions when they simply cannot afford to pay a solicitor to advise?

For so many questions, the internet is the first port of call now.  You're thinking about a major purchase?  Google product reviews.  You have a technical question on any particular topic?  Google it.  Search for help with divorce and the first page of the results will bring up Wikivorce and you have access to a community of people happy to help and with first hand experience.  No, it can't substitute for the direct help of your own solicitor.  For the best level of help, you need someone like me.  But if that's just not an affordable option, Wikivorce will stand in the gap.  It remains the case that the helpful people online will often advise other users that they really need to get a solicitor - there's a limit to what they can do to help - but there's no doubt at all that people using the site will be much better prepared for the procedure than those who try to go it alone.

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 about family law?

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

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

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

Professional women and cohabitation

So, where to start then?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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





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

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

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

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

Withdrawing legal aid - stupid or what?

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

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

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

At the Court of Appeal

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

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

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






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

Is this the most sordid ever? Ibuna v. Arroyo

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

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

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

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

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

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