I have a big birthday this year - I have so got to have one of these!
a lawyers ideal present
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.
Friday, 13 April 2012
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:
" 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:
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.
" 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."
(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.
Thursday, 12 April 2012
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.
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.
Monday, 2 April 2012
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.
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.
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.
Tuesday, 20 March 2012
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.
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.
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