Marilyn Stowe Blog

Family law, pre-nups and Sir Mark Potter

Sir Mark Potter’s appointment in April 2005 to head the Family Division came as a surprise. He arrived apparently almost new to family law, having specialised in commercial law, and his appointment as head of the entire Family Court system was viewed by many commentators as unexpected – to put it mildly.

While there were those who thought he’d merely stay unnoticed in the background for a few years until he quietly retired, I’m pleased to see that hasn’t happened. Sir Mark seems to enjoy his job, giving judgments with relish, and those that I have seen are sensible, non controversial and clear.

He seems to be fair minded, with an instinct for what is “right” and he does his job in a straightforward way, lacking snobbishness and arrogance. Today, in an interview with the Times, he has given his backing to opening up the family court system in certain cases where the media have hitherto been forbidden- and closing them to the media in others. And I’m delighted he has.

I strongly believe that in public family law cases, where the State is taking action in relation to a child, the entire process should be transparent. Removing a child from its parents is the most draconian civil action that can be taken. It is open to allegations of wrong doing if it is not transparent – and that is what has happened. Furthermore, any miscarriage of justice is one too many.

As for closing private law family courts to the media, I agree they should not be a public spectacle. I don’t think the financial cases of individuals getting divorced – however high profile – should be printed in the media. It’s quite simply none of our business and leaves them vulnerable to any host of risks.

For example, Mrs Charman was robbed at home soon after news of her settlement was published in the press. Sir Paul McCartney had to suffer the indignity of full details of his private financial arrangements being read worldwide and Heather Mill’s lifestyle came under intense scrutiny, not all of which was fair comment.  

In his interview, Sir Mark Potter also discusses the issue of pre-nuptial agreements. The debate on this issue has become something of a poisoned chalice, particularly in light of the Charman and Mills-McCartney settlements that have seen so much media attention this year. In February, the Times’ legal editor Frances Gibb complied an excellent précis of the arguments, asking succinctly “Should you bother with a pre-nup?”

As I argued then, giving full, automatic legal effect to pre-nups would not lead to greater fairness, but to entrenched injustice. However, I still believe that within the whole context of a separation, pre-nups can and should be taken into account by the court as part of their considerations. I was pleased to see Sir Mark did not shy away from addressing the issue, discussing his preference for strengthening the authority placed upon pre-nups without them being legally binding.

He also backs the Law Commission’s report to government about the reform of Cohabitation law – and the extension of legal protection to unmarried couples. He says the Commission has made a convincing case, and as I was one of the legal team to contribute to Law Commission’s proposals, that is very pleasing to read!

Let’s continue to hope the government will introduce the legislation that every practising family lawyer knows is so desperately needed