What would you like to know about divorce?

Many first-time visitors to this blog arrive after searching for answers about divorce and family law on the internet. Others submit enquiries directly to the comments section on this blog, or contact me directly.

Today (Tuesday 10 January) I appeared on the sofa alongside Phillip Schofield and Holly Willoughby on This Morning to offer advice to viewers.

If your question wasn’t covered, please feel free to add it to the comments at the bottom of this post.

One topic that arose at the end of the programme was the annulment of a marriage. For anyone wondering about whether or not they can annul their marriage (if it was celebrated in England and Wales) this excellent government website will give you all the information you need.

The distinction is made between void marriages and voidable marriages. A void marriage has never existed, while a voidable marriage does exist, but can still be annulled. A void marriage should also be annulled, as explained on the website.

It’s an interesting and technically complex area of the law. Further issues arise  if a marriage in this country has not been celebrated in accordance with the requirements of English law. Can the marriage still be recognised in law?

There are also issues involving marriages celebrated abroad, and whether those marriages can be recognised.

All these topics will be covered by me in later posts, but this weekend, after a hectic week in our offices in both London and Yorkshire, I’m going to have a well-earned rest!

I hope everyone has a very good weekend,
Marilyn

But London is different. There is no such thing as leisurely or friendly, or so it seems to me. The pace is fast, people race along the pavements, no one smiles and everyone looks positively grumpy.

It was raining yesterday when I set off for the first full day at our new office, so I hailed a cab. Coming up Chancery Lane we drove past a fellow family lawyer who had his head down and was striding towards his office. Dressed all in grey and looking thoroughly miserable, his mood seemed to match the day perfectly.

“What have I let myself in for?” I asked myself as we swept past.

I don’t think people are fully back at work yet. High Holborn wasn’t as jam packed as usual and arrived in good time and felt relieved to see a set of friendly faces. Partner Gavin Scott who has come down from Hale and Paul Read, my trusted lieutenant from Harrogate. They both inspire confidence and I’ve no doubt they will inspire others too. Then in breezed Andrew Williams, our firm’s chief executive, who was fresh off the train with one of our senior secretaries to induct the new admin staff. All their firm, confident voices were very reassuring and I started to relax, despite all the teething troubles everyone who has ever set up a new office knows only too well!

On my walk home yesterday evening I was struck by just how dark the London streets were; the outlines of those same fast moving commuters only illuminated by the yellow light of passing cars, shops and street lights. When I reached home I found my flat was also uninvitingly cold, dark and empty.

I love being in London, but always know that my real home lies waiting in Yorkshire – and that I can head home whenever I want. This is something that those in broken relationships can’t do: go home. They are often trapped with feelings of loneliness, isolation and anxiety and my heart goes out to them at one of the toughest times of the year.

People don’t like living empty, grey and lonely lives. They like to be happy, which generally means living as one half of a couple. They like the companionship and all that brings: conversation, colour, arguments and ups and downs. Even if another party is involved, a marriage break down can still be achingly, unbearably painful and lonely. And divorce doesn’t give anyone immunity from pain.

So why does Sir Paul Coleridge, who has spoken on the same theme for some time now, think it’s possible to set-up a brand new foundation to save broken marriages? Why does he keep saying it’s as straightforward as his catchy slogan: “mend it – don’t end it”? How can he really think his foundation will work when a couple may have decided it can’t, and that their lives have changed for ever?

Had Sir Paul not been a hugely successful QC at the family bar before going up to the bench, and had he not personally known all his clients inside out, I could have better understood the formation of his Marriage Foundation. He must have heard first-hand from his clients during conference, when they were talking to him and pouring out their heart’s emotions, feelings and pain, that it is not as easy as to simply say “mend it” rather than “end it”.

A broken relationship is not always even the result of a mutual decision. A relationship usually starts to break down years or months before it finally does. The couple starts to “uncouple” and if they don’t realise what’s happening to them, by the time they do it will be years too late. I’ve heard of countless couples who realise there is nothing left when their children leave home. One or both of them choose to end the marriage and move on to start a fresh chapter while it’s still possible.

Divorce lawyers know by the time they meet their client any chance of a successful reconciliation is almost impossible. It can happen, but in my experience it doesn’t often – and that is nothing to do with me! I don’t make those decisions and know that the loneliness of a broken relationship can never be underestimated.

I have also never yet met a divorcing parent who doesn’t agonise over their children, who doesn’t consider the pain being inflicted on the family, but who also believes that overall the decision is best for all of them. These decisions are never easily made, they are made because those involved genuinely believe, or have come to accept, that the relationship that once existed is now dead. Criticise them or not, understand them or not, these couples have a right to end a marriage in the same way they have a right to enter into it.

So if any good needs to be done for society then by all mean let’s encourage couples into marriage, something which Sir Paul says is the gold standard for a family. There I completely agree, but the number of couples marrying is substantially dropping, so there is obvious work to be done by his foundation and others.

But again I recognise that not everyone does want to marry.  I happen to agree there is more chance of a successful family if the parents are married, but to try and force couples to get married or force them to stay married is, to my mind, plainly wrong. To impose a different standard on them, to require them to ‘mend it-not end it’ is wrong.

I also wonder whether the Marriage Foundation will campaign for divorce reform, and if so, should a judge be involved? And while I respect Sir Paul’s decision to speak out and campaign, isn’t a “guilty” party going to feel concerned if he or she comes before him in court, knowing of his views?

Last week his latest judgment, S v AG [2011] EWHC 2637 (Fam), was published. It concerns the division of just £425,000 assets, the proceeds of a lottery win, between the wife who denied she had won it and the husband who said she had and was claiming an interest in it. How a case of this size brought by two litigants in person came to occupy the time of a high court judge in Central London is not clear. But it did, and he dealt with it as thoroughly as he would his usual caseload involving multi-million pound settlements.

(Although I wonder: might his fellow judges in the county courts, more accustomed to dealing pragmatically with a case of this level, have been more generous to the husband? I’ll come to that later.)

I once heard the Supreme Court judge Lord Wilson explain that when he is writing a judgment, he focuses very much on the “losing” party to explain why he has reached his decision. In this case, Mr Justice Mostyn had to explain to both parties, both of whom were litigants in person, how and why he had reached his decision.

S v AG has already been discussed in depth by John Bolch on Family Lore, so I’m not going to write too much about the specific facts of the case – except to point out that it was a long marriage, the parties having married in 1984 – and instead concentrate on the approach. It is important to note that the case apparently reached trial without any relevant papers! As a result, notwithstanding the appointment of two “McKenzie friends” to assist the parties, Mr Justice Mostyn had to adopt a far more “inquisitorial” role, which is routine for solicitors seeing a client for the first time but, in our aggressive “accusatorial” system, is an unusual approach for a judge.

He did not have the advantage (and luxury) of hearing erudite legal arguments from both sides, and making up his mind thereafter. He seems to have been obliged to consider all the potential legal arguments, for and against, all by himself and then make his own decision.

This is pretty much what we solicitors have to do when we meet a client for the first time.

When I first meet a new client, from the outset I am expected to give him or her an overview of what will happen, and what the likely result will be.  This can be a challenging task: inevitably, it will involve sorting out all the relevant information from all the information that is not. Clients don’t know what it is you need from them; as a result, much of what they volunteer and think is important, may not be. It’s up to me to decide what is important and what is not. I can only rely on what I’m told and sift it as best I can.

As Mr Justice Mostyn discovered in S v AG, both parties concentrated on the other’s conduct. For conduct to cross the (deliberately) high threshold and become relevant, it has to be very bad indeed. The judge didn’t think that it was a relevant issue in this case – and for 99.99% of my clients, it isn’t relevant either. Clients frequently think that it is, which makes it even more important that they are advised accordingly. As a solicitor I must advise clients to stay focused, unemotional and commercial – which isn’t always easy, but is always necessary.

And like Mr Justice Mostyn in this case, when I first see a client I have nothing by way of paperwork to help me. Since the Imerman judgment, even if paperwork is handed over, it will have to be handed back unread if it belongs to the other spouse.

So with no paperwork for guidance, what does happen when I first see a client who wants to know what his or her likely financial settlement will be?

The process that I follow is similar to that invoked by Mr Justice Mostyn who had no choice in S v AG. It is a basic, six-stage process in which I:

1. Elicit the relevant facts from the client. This may involve calling in our forensic accountancy team to analyse further publicly obtainable information while the client is at the office.
2. Broadly calculate the “reasonable needs” of the parties from the information provided.
3. Consider and explain the relevant law.
4. Apply the relevant law to the facts.
5. Give a ballpark view as to the outcome. (Obviously I can’t give the exact figure, because I’m not a mind reader of judges!)
6. Explain the procedure and potential timescale involved, and estimate the likely costs.

On paper, it looks to be a relatively straightforward process, designed to give the client an area to aim for and an understanding of what is going to happen, why and how.

In practice, it’s more complex. Sometimes there just isn’t enough information to go on from a first meeting.  In such circumstances, the client will be told what additional information is required, including valuations, financial data and so on. I will ask the client to come back with it so the outcome can then be considered in greater detail.

Furthermore, the law isn’t always easy to apply. For example, notwithstanding the relatively modest assets in this case, the law that Mr Justice Mostyn had to apply in S v AG involved:

• Distinguishing the matrimonial and non-matrimonial assets.
• Defining the applicable principles for sharing those classes of assets between the parties.
• Applying the Duxbury Tables to ascertain lifetime income requirements, which would be met by a lump sum out of the assets.
• Applying a cross-check of the fairness test.
• Applying (or, as in this case, disapplying) the “compensation” test.

Ultimately, Mr Justice Mostyn reached a figure for the husband that he thought appropriate to the facts of the case, having applied the relevant law. He found that the wife had shared in a lottery win as part of a syndicate and on the facts of the case, he regarded her win as non-matrimonial property and therefore not to be shared equally. He gave the 55-year-old husband (a kitchen porter who earns £12,000 per annum and lives in rented property) a lump sum of £85,000, which amounts to 20% of the assets. He left the rest to the wife who has remarried and has a similar income to her former husband. She owns her own home from the proceeds of the lottery win, together with another property in Colombia.

With great respect to the judge, was he right when he held the win was a non-matrimonial asset? As he also pointed out, even if a lottery win is judged to be matrimonial property, in law it still does not necessarily mean that the win should be shared equally. He mentioned Australian cases that went both ways. Even though the marriage was in turmoil at the time of the win, the parties were still living together, the ticket was paid for out of the family income (which the judge dismissed as irrelevant) and the couple did not separate for some years thereafter.

So why should the windfall, (which could as easily befallen the husband as it did the wife) not be simply treated as “matrimonial property”? Or if not, given it had been effectively ring fenced and not “mingled” during the marriage, should there have been a more generous interpretation of the husband’s needs, applying all the factors of Section 25 Matrimonial Causes Act 1973? Why shouldn’t both parties live out their retirement years more equitably and in greater comfort?

Back on terra firma, we solicitors are often expected to give a ballpark view sufficient for a client to rely upon, after only an hour with a new client. Not every solicitor undertakes this six-step process at the first meeting – but the truth is, I enjoy brain teasers! However this case does demonstrate the wide parameters that exist in many cases, even those which at first sight seem straightforward. I would have given the husband a more generous award out of what was ultimately a lucky win 11 years ago.

With so much happening within family law right now, I have already found – as I did at the University of Staffordshire Law School earlier this year – that being an audience member at one of these conferences can be a mind-bending exercise. This time, I knew I had some work to do. The varied programme covered a range of subjects relevant to family lawyers. It was a fascinating day, and I was kept on my toes introducing each speaker and moderating sparky debates.

The speaker who made the deepest impression upon me was Joe Egan, a solicitor from Bolton who helped to organise the conference. Joe is the secretary of the Bolton Law Society, and a Law Society council member. He spoke about the future of law firms and the possibility of people without legal qualifications owning firms and making inroads into the legal market. Tesco Law, as it is known, has come about as a result of the Legal Services Act 2007, which is due to come into force in a few months’ time.

Joe has seen a lot during his lengthy and varied career, and has clearly remained true to his roots and beliefs. He said that he went into this profession as a vocation, was unimpressed by the “slicksters” who were after making fast money – and watched as they came and went. What worries him now are the future “Specsavers” of the legal profession: giants of the high street who may try and gobble up the market, against whom small firms will be unable to compete. He alluded to an article I wrote recently for Solicitors Journal, in which I too expressed fears for high street firms.

Looking to Australia, Joe gave us two examples: one law firm that has successfully floated on the stock market there, and another that has not. He examined what I would call the Big Is Beautiful route, and how law firms and venture capitalists could draw upon it to grow a high street brand, cutting out competition. Fixed prices could make such brands particularly attractive to the public. To grow such a brand, however, requires a lot of money and resources that are in finite supply at most high street firms.

But hold on! We don’t just sit back, admit defeat and watch high street firms up and down the country crumble, do we? So I said: “Specsavers doesn’t sell Cartier, Joe”.

What I meant was this. Yes, there is a place for Specsavers. They supply the mass market and lots of people buy from them.  But when I need some specs, they aren’t for me. They don’t offer my favourite lines and they aren’t for everyone. I get my glasses from my own optician. I have known him for years, I like him and he has a shop on the very same high street as Specsavers in Harrogate. I stick with him because in my opinion, he is the best at what he does. His service offering and customer service is unmatchable.

At the toughest times of their lives, going through divorce, I believe that most clients are the same. They want the best service available, with personal, tailored advice. Our clients want to be represented by solicitors with experience and talent, who are known for giving the very best of themselves.

I believe that such solicitors will always do well, irrespective of the competition. They aren’t bothered about competing with cheap divorce websites, because solicitors can only ever sell brains, skills, experience and quality. I think that the discerning public know this – and will vote with their feet.

As Joe pointed out, a survey conducted in Liverpool earlier this year found that the majority of people in that city preferred “traditional solicitors” to handle their affairs. When faced with a choice between Tesco, the Co-op, the AA and a traditional law firm, 80 per cent of people chose the latter.

My view, having listened to Joe, is that solicitors shouldn’t fear the Big Boys who are hopeful of grabbing mass market clients with quick-sell marketing. Instead, let’s all keep improving the quality of our services, investing in technology and improving our skills. If we do so, we will not only survive – we will thrive.

Other speakers on the day included Joanne Barnett: one of several feisty Manchester women barristers who spoke. There followed a perceptive look at the newly-introduced Family Procedure Rules by Archna Dawar of Exchange Chambers. Barrister Frances de Navarro – one of my future tips for the top – provided a riveting review of current children law, both private and public.

Susan Deas gave a fighting performance on the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Who would want to be against her?  Of course we disagreed about what the Supreme Court will ultimately decide to do in the case of Kernott v Jones. No doubt our differences arose because I am a family lawyer, whereas Susan also has a Chancery perspective. The discussion highlighted the current deficiencies for cohabitants who seek a remedy in law.

Solicitor Liz Tait, on behalf of Resolution, spoke eloquently about the benefits of collaborative law for the uninitiated. Chartered accountant Jackie Clifford spoke about business valuations in family law. She was very good, and the usefulness of in-house forensic accountants could not have been made clearer. I’m glad we have our own in house team: it beats me why more firms don’t.

Finally the star of the Manchester family bar, Sally Harrison QC, spoke about prenups – and I was pleased to note that we appear to be in agreement! Neither of us likes the idea of strict prenups becoming law without a safety net.

Many thanks to Joe, to Bolton Law Society and to all the speakers and audience members for a truly tremendous day. Bolton Law Society even ordered me kosher food, which I didn’t ask for! It was all so very much appreciated.

I am fascinated by the idea behind Audio Obscura. I have always enjoyed meeting and advising people – and often, guessing what they are about to tell me. I like helping them to find ways out of their various problems. During long working days, that vital interaction keeps me going. As for the ability to anticipate clients’ problems: that’s a lawyer’s tool. I once calculated that I have advised close to 10,000 people in my career to date, and experience has taught me to understand, respond, anticipate and advise my clients.

Every case is different, but clients’ problems can be similar. Every person is different, but when confronted with specific situations, people’s reactions can be predictably similar. Sometimes an experienced divorce lawyer can hear meagre scraps of information about a complete stranger, and it is still enough to understand and offer advice.

Yesterday I saw Queen’s Counsel, in conference with a client, at a well-known barristers’ chambers in London. I arrived early, even though he works nearby, to make sure I was there first so that he didn’t have to wait on his own. I sat in the small waiting room, reading a newspaper. In came an elderly man with a cut-glass English accent, obviously a client. He too was there to see Queen’s Counsel.  As he sat and waited for his solicitor, he was clearly nervous and agitated. What was he brooding upon?

I imagined what the answer might be. To me, he had all the hallmarks of a man who was used to exercising control in his marriage. My guess, observing him, was that his wife was divorcing him and he couldn’t cope. I suddenly thought: I was (in a way) taking part in the St. Pancras exhibition!

The man paced about, unable to sit down until his solicitor bustled through the door. The pair then seated themselves opposite me. She spoke loudly and with apparent authority, no doubt anxious to impress her client. But why did she choose to provide the answers to my thoughts? She dived straight into the details of his case, at full volume.  I had no choice but to “overhear” their conversation, in that small waiting room.

I was no longer exercising my imagination: I had guessed right, but that wasn’t the point. By the time my own client arrived, I knew that man’s name, age, occupation, case history, assets and the nature of the specific family law problem for which they sought advice. (I actually knew the answer as well!) I was horrified though: this conversation was factual, it should have remained strictly private and it should have been conducted elsewhere.

It reminded me of another conversation I overheard once. In keeping with the St. Pancras exhibition, this time I was on a train. A man in the same carriage spent most of the journey speaking loudly and rudely into his mobile phone. We learned that his boss had opened an amazing new business overseas, and that it was already going great guns. He was making flight arrangements for both of them to travel and inspect it the following week. The man was oblivious to everyone around him, and how we were all annoyed with him for disturbing us.

All of us bar one, that is. What he didn’t know was that I was acting for his boss’ wife in their divorce. And the offshore business had not been disclosed…

Image credit: Victoria Station, London (1951), Toni Frissell.

A recent post –

It’s a fictitious scenario, with a puzzle at the end, which centres upon a rocky marriage. The wife is shying away from the truth. The husband is consumed with the guilt of an illicit affair. Their eldest child has guessed, and is threatening to reveal all.

I am asking you to give your opinion of the outcome. You don’t need to be a lawyer to take part and, although it’s a puzzle, there are no right or wrong answers. Why ‘Chocolate Box Family’? Because the best answer received before Monday 29 August will win a box of chocolates and a bottle of champagne!

Tom and Gwen are in their late 40s. They married 20 years ago after living together for three years. They have three children: William, 17, is about to begin a gap year. Sally, 14, attends a local private school. Rupert, 7, is also at private school.

The family live in the (fictional) town of Middleswich. Their comfortable, detached home is close to a commuter rail link to London. The house is worth about £950,000.

The house has a mortgage of £350,000. Tom purchased the property in his name 10 years ago, because he provided an additional deposit of £200,000. This was an inheritance from his late father, without which the house could not have been afforded. The mortgage is high because extra money was borrowed only recently on the mortgage, to pay for a large dining kitchen area and patio with a bedroom above.

Tom commutes daily to London, a 50-minute journey each way. His fare is paid by his employers. Tom works in corporate finance and has steadily progressed up the career ladder. He earns about £180,000 per annum gross, about £95,000 net. His pensions are now worth about £400,000. The perks of his job include free, private healthcare for all the family.

Tom and Gwen have managed to save about £100,000, in Gwen’s name for tax reasons.

Gwen used to be a high-flying corporate executive herself. When William was born she gave up her job by agreement. Every day she takes the children to their respective schools, in her rundown estate car. She co-ordinates the children’s after-school activities and helps them with their homework. She cooks, does the housework and looks after the family dogs. Three mornings a week, Gwen does voluntary work at the local hospice.

Gwen is dependent on Tom for the household income. She can’t imagine going back to her previous work. Technologically and professionally, she is years behind. Sometimes Gwen resents giving up the corporate life, but mostly she is content looking after their family and their home. She spends about £3,000 per month on herself, the children and some household expenses. Tom pays the mortgage and school fees direct.

Tom hates his daily commute, but for the last eight months he has enjoyed the company of another London commuter. Sonia is 38. A high-flyer, she is a married mother-of-two. Her husband is a musician. During the day he stays at home and cares for their young children. He talks of fame, but it has never happened and Sonia has become bored with him.

Somebody who does interest her is Tom. He is everything her husband is not. He is steady, dependable and a high earner. Very soon they are having drinks together after work and one thing leads to another and…

Tom comes to see you, for urgent advice about a divorce. He sits with his head in his hands, and tells you that he doesn’t know what to do. Sonia has made him feel alive again. He can’t stop thinking about her. He can’t imagine giving her up. Yet he admits that he still feels terrible about Gwen. He thinks of her more as a friend nowadays. She is too wrapped up in the children. She never bothers about how she looks. She cares more about the dogs than about him. It will break her heart to move house, he is sure, but he thinks it has to be done.

He is also sure that Gwen will be able to manage without him. Now that Rupert is at school until 3.30pm, couldn’t she go back to work and earn a decent living? Ideally Tom would like his £200,000 inheritance back and at least a half-share of the house, plus his pension. Gwen could keep her £100,000. He doesn’t mind paying generously for the children, but doesn’t see why he should share his inheritance or pay long-term maintenance to Gwen. It doesn’t seem fair.

The main reason he is here, he confesses, is that William saw him get off the train with Sonia. William, no fool, keeps asking embarrassing questions. He has informed Tom that if anything is going on with “that woman”, William will never speak to his father again. William is also threatening to tell Gwen, Sally and Rupert. He says that if he does so, they will all hate Tom forever.

Sonia is pushing Tom to leave. She says that if he does, so will she. She will leave her children with their house-husband father, and Tom and Sonia can move to an apartment in Central London.

Tom is in a panic. He needs to decide what to do and feels that it is all running away from him.

He tells you that Gwen is aware of a problem, but has convinced herself that his recent mood swings, absences overnight in London and general change of attitude are all caused by the pressure of the daily commute. In Tom’s words: “Typically, she thinks it’s better to say nothing and hope all will blow over”. Even when Gwen received a note through her letterbox from a local musician, alleging a relationship between Tom and his wife, she quickly tore it up and dismissed the incident as mischief-making.

So, what is YOUR advice for this family?

For example, can this marriage be saved and if so, how?

If the couple does divorce, what do you think would be a fair financial settlement and why? How should they best prepare the children?

What do you think?

Enter now, by leaving your comment below. Good luck!

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UPDATE: This competition has now closed.

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Image credit: ‘Composition X’ by Kandinsky.

While I accept that some litigants in person will succeed, I believe that they will only do so because the merits of their case overwhelmingly deserve it. However if a case is finely balanced, it will turn upon the skills of the lawyers ranged against the litigant in person. That person, untrained, inexperienced and unable to argue competently against technical points of law, simply cannot hope to compete.

To my mind the case of N v N, about which I wrote earlier in the week, graphically illustrates my point. I can’t help but think that had Mrs N (the mother of two children) been legally represented throughout, perhaps she would not have been the subject of a section 28(1)(a) bar, and those later hearings could have been avoided.

Only Fools and Clients

The government wouldn’t like us to start pulling our own teeth, so why encourage more litigants in person, asks Marilyn Stowe

There is a well-known saying: “A lawyer who represents himself in court has a fool for a client”. We lawyers know the truth in that maxim. Like everyone else, lawyers do get caught up in the legal system. A few of them, if they get divorced, decide to handle it themselves – even if family law is not their speciality. Many of them discover, to their cost, that they were wrong.

Yes, you may be a brilliant and accomplished lawyer. Yes, you may know all the tricks of the trade. But lacking the skills and counsel of those who practice in the field, and caught up in the emotional roller coaster of divorce, how can you be sure that what you doing is correct? Once you are tangled up in our adversarial family law system, the detached, objective and hard-won skills of the opposing lawyer are trained fully and squarely upon you.  What you really need is calm, commercial advice. You need to be defended and protected.

To be fair most lawyers realise this, and to some extent a lawyer can be forgiven for assuming that being a lawyer is a passport to skill in every area of the law, including family law. When events begin to get out of hand, most lawyers are wise enough to take advice or suffer the consequences.

However there is a growing trend for litigants from all walks of life, not just law, to represent themselves. Some do so to try and save costs, although in my experience, this can turn out to be a false economy.  Others do so because they believe themselves perfectly capable of conducting their own cases, despite their lack of legal knowledge, their lack of experience and their lack of awareness of the potential consequences.

By removing legal aid from all but a tiny fraction of would-be litigants, the Government is now actively encouraging hundreds of thousands of litigants – the poor and vulnerable among them – to represent themselves. As solicitors, we know what these hapless people don’t: that going into court and litigating without lawyers can turn the courtroom into the Colosseum.

Would our Government advise its citizens to pull out their own teeth? Or conduct their own surgery? They wouldn’t dare. So why is the law any different? Is professional care in law not as reasonable a requirement as professional care in dentistry or medicine? On what basis, if any, does the Government have confidence in the non-existent legal skills of its citizens? How can they possibly think it acceptable for litigants in person, who are new to the law and ignorant of the tactics, of the twists and turns of litigation, to represent themselves in legal proceedings?

I have personally encountered many litigants in person who bear a heavy emotional burden. Armed with books and determined to “win”, they go into battle like gladiators. The case is all about them, their spouse – hated, with or without good reason in many cases – and their children. What happens in court will affect every member of that family for the rest of their lives. So what can a litigant in person count on? The sympathy of the judge? No. The judge may well give that impression. He or she must be courteous. But a judge adjudicates on law, not sympathy or pity.

I took a straw poll of solicitors in the office, all of whom have had recent experience of litigants in person. Every solicitor had a horror story: from interminable hearings that should have taken minutes, to aggressive misconduct by the litigant, to being wrongly accused of bullying before the judge, to the litigant-in-person’s failure to lodge all the requisite documents, or filling them out incorrectly, or refusing to settle on any terms and transforming cases that could have been reasonably conducted and ultimately settled, into stressful, ugly nightmares. The verdict? A resounding thumbs down.

Image credit: Pollice Verso by Jean-Léon Gérôme

However this fortnight away provided a much needed rest. I did very little work (although there are some clients and Stowe Family Law partners who may testify differently…) and it was a chance to recharge my rundown batteries. Many thanks to Harrogate’s Managing Partner, Julian Hawkhead and trainee Laura Guillon, for filling in for me on the blog.

Thanks too to John Bolch, whose Family Lore blog kept me fully up-to-date with family law developments while I was away.  A quick dip in to see what’s going on is all that’s needed, which is what I did each day. It’s a thoroughly entertaining blog and informative even over the weekend, when it becomes more fun.

I see that we both covered the Mostyn divorce, albeit in different ways! John Bolch has an irreverent sense of humor, which I love: as a full-time blogger and writer he is no longer bound in the same way as I am, by our professional conduct rules…….

I also read two cases of interest via Family Lore’s sister blog, Family Lore Focus. Yes, even relaxing by the sea, I was spotting cases which I thought would interest readers!

Yankah v Yankah

The first case, Yankah v Yankah, was an unsuccessful attempt by a wife of a bankrupt man to have her husband’s share of their home transferred to her. Predictably, she failed. Once bankrupted, a spouse’s half of the house transfers automatically to the trustee in bankruptcy. The court cannot transfer a husband’s half share to a wife, because in law that half-share is no longer owned by the husband. It’s tough, very tough, on the wife. Often, as in this case, the house is the only major asset in the case.

However, here’s a tip. The only saving grace in such cases is that a spouse is permitted to stay in the property for 12 months after bankruptcy is declared, before it needs to be sold so that the trustee can get his share. It is worth trying to negotiate a deal whereby, in exchange for an earlier sale date, the wife gets more of the equity. It can be done and we have done it for a client of ours who ended up much better off for it.

N v N

The other interesting case I read was N v N. This is a maintenance case. The period of maintenance was supposed to end after five years, at the end of 2009, but the order left the wife free to apply for an extension. The wife did so, and it turned out that she hadn’t done much about readjusting her life and getting decent employment. The court extended the term by two years.

There followed some ups and downs in the local court on appeal. When the case was heard before a circuit judge the wife was more successful, obtaining an order that extended to 2015 and thereafter a nominal payment for joint lives.

The husband appealed, citing fundamental procedural flaws by the circuit judge. The case ended up in the Court of Appeal before Lord Justice Thorpe, who set aside the decision of the circuit judge and restored the original order of the district judge who had heard all the evidence, and who had decided that no further extension would be permitted after a further two years. The district judge had applied what is called a s 28(1)(a) bar, under the Matrimonial Causes Act 1973.

Lord Justice Thorpe observed that the district judge had heard all the evidence, which the circuit judge had not, and therefore had a similar opportunity of weighing up all the facts. He wasn’t going to disturb those findings with which he could see nothing to disturb. The district judge had not been plainly wrong in exercising his discretion as he did.

But I wonder: was the district judge correct? Or was the (more senior) circuit judge the one in the right? While the Court of Appeal looked at the minutiae, which it had to do, has justice been done to that wife or has it been cruelly undone?

If anything, this case serves to graphically demonstrate the uncertainties of our judicial system of discretion. For example, an application for continuing maintenance is dependent upon facts and on the day, the application’s outcome depends upon how the judge sees those facts. The application is dependent upon the decision of one judge, who has absolute discretion as to what to do and, provided that the judge’s decision falls within wide parameters and is not plainly wrong, it will stand.

Judges may take different views from the same facts. Making the call for your client, therefore, isn’t a precise science. Inevitably, those who litigate may do so on the basis that you pays your money – and you takes your choice.

MIAMs: What are they, exactly?

As of 6 April 2011, many couples going through a divorce are now expected to attend an initial MIAM, and consider mediation as an alternative form of dispute resolution. The aim: to ensure that couples are aware of mediation and understand how it could support them during separation and divorce.

A MIAM is a meeting with a mediator – or, for Stowe Family Law Settlements clients, a qualified lawyer-mediator – which provides a couple with information about the mediation process and the legal framework that applies to their situation. It is a formal assessment of mediation’s suitability for their individual case. The parties can tell their stories, working through discrepancies with the neutral mediator.

The meeting also provides the couple with additional information about funding options and their eligibility for public funding is assessed, ensuring that they receive the most cost-effective advice.

The process provides time for formalities to be observed when necessary, such as screenings for domestic violence or child abuse issues (either of which could render mediation unsuitable for the parties in question). Whether or not mediation is the most suitable course of action depends on individual circumstances, and the role of the MIAM is simply to measure those circumstances to determine suitability.

MIAMs: Who can provide them?

The earlier that a couple engages in the mediation process by arranging a MIAM, the quicker a resolution may be reached.

Although MIAMs were introduced at short notice, not every mediator provides them.  Only those mediators who fulfil the government’s stringent criteria can provide MIAMs.  They must hold specific qualifications and accreditations, belong to a member organisation of the Family Mediation Council, hold professional indemnity insurance, meet certain requirements for continuing professional development, have a professional practice supervisor and be in active practice as a mediator. They must also complete a further, rigorous Family Mediation Council course.

At the time of writing, there is a relatively small number of law firms outside London able to provide MIAMs. They include the Stowe Family Law Settlements offices in North Yorkshire and Cheshire. Our practice also provides MIAMs at its office in Central London.

Also at the time of writing there is no accurate, nationwide index of mediators who are able to provide MIAMs. (When there is, we will update this post with the web address.)

MIAMs: Do I need one?

The current expectation across the judiciary and the Ministry of Justice is that before applying to the court, couples will attend a MIAM to see if mediation is appropriate to resolve their particular dispute.

Further mediation is not mandatory, but  at the time of writing it is still too early to say what judges will do in circumstances where a couple have not undergone a MIAM.

There are potential cost implications and sanctions that could be imposed by the court if the process has been ignored. Alternatively, the proceedings could be halted altogether until a MIAM has been completed by the parties.

Certain exemptions do apply. You are not expected to attend a MIAM if the mediator is satisfied that one or more facts apply to your case. They include the following:

• One party is unwilling to attend a MIAM and consider mediation.
• A mediator has decided that your case would not be suitable for a MIAM.
• An allegation of domestic violence has been made within the last 12 months.
• The dispute concerns financial issues and one party has been declared bankrupt.
• Any delay caused by attending a MIAM would cause a risk of significant harm to a child, a significant risk of a miscarriage of justice, or unreasonable hardship.
• The whereabouts of your former partner are unknown.
• There is current social services involvement, as a result of child protection concerns.
• You contact three mediators within 15 miles of your home and none is able to conduct a MIAM within 15 working days of the date of contact.

For further information, you can read the Ministry of Justice’s Pre-Application Protocol for Mediation Information and Assessment here.

MIAMS: Is family mediation wrong for me?

Mediation isn’t a perfect solution, and it isn’t suitable for everyone. For example, mediation may not secure the best outcome if any of the following situations apply to your case:

• You doubt that your former partner will provide full and frank disclosure of his or her finances.
• Your mediator has insufficient knowledge of what you are entitled to in law. (Please note: if your former partner does not provide full and frank disclosure, this is likely to be the case – and it is not the mediator’s fault!)
• Emotions are running so high that reason and compromise are simply not possible. Successful mediation requires co-operation from both parties.

One criticism levelled by lawyers is that a couple is required to attend a MIAM before the parties are required to make full and frank disclosure of their finances. If the couple decides to pursue mediation and one party is subsequently less than honest about their financial situation, the other party may be placed at a disadvantage and/or mediation may fail.

As Marilyn Stowe has noted in a previous post on this subject:

It is a pity that such heavy emphasis has been attributed to pre-application assessment [the MIAM], when involvement in mediation is by no means a guarantee of success. [Mediation] can turn out to be a complete waste of time and costs, particularly in financial cases, if insufficient care is paid to obtaining good legal advice and ensuring the assets are fully disclosed and agreed. A client may turn up at his or her solicitor’s office, clutching a draft agreement – only to discover that it isn’t worth the paper it’s written on. Then they are back to square one, months down the line, with costs rising.

MIAMs: Is family law mediation right for me?

The rationale behind the introduction of MIAMs is that mediation is often beneficial to couples involved in disagreements – particularly those pertaining to children and finances.

Firstly, it provides the couple with the opportunity to pause and reflect on the nature of their differences. It takes place in a neutral environment with a trained mediator present who can help the couple towards reaching agreement on their issues.

Mediation can also save a lot of time, stress and the potentially expensive and timely costs of court action, while aiming to preserve the future relationship of the parties who are or have separated. This, of course, is particularly important where children are involved.

Mediators come from different backgrounds. Stowe Family Law Settlements, for example, is a specialist family law mediation practice. Although we have mediators on hand, almost all are lawyer mediators: family lawyers who are also qualified and experienced mediators.

Mediation incurs a lower overall expense when a couple share between them the cost of the mediator, rather than each having to pay for their own lawyers to negotiate on their behalf. More specific information can also be given regarding the relative value of court proceedings, so the couple is fully informed and can make the decision about what to do next to resolve their differences.

In essence, a MIAM can serve to highlight and explore a couple’s divorce choices. You can of course choose not to mediate after their initial meeting. However once they have all the information about the mediation process, many couples decide that they do want to proceed down this path.

James Thornton is a lawyer mediator at Stowe Family Law Settlements and a partner at Stowe Family Law’s Harrogate office. With 15 years’ experience, James’ specialisms include dealing with the financial issues arising from divorce, particularly when substantial personal, business or pension assets are involved. His expertise also extends to cases involving children. A former member of the Law Society’s Family Panel, James is an Accredited Specialist member of lawyers’ organisation Resolution, sits on the North and West Yorkshire Resolution committee and is a member of the West Yorkshire Family Justice Council.

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