Further to my recent posts about savage cuts to family law legal aid in England and Wales, I would like to thank those who have contacted me or left comments, on this blog and on Solicitors Journal, with their thoughts.

I am pleased to learn that the Law Society, which represents the solicitors’ profession in England and Wales, has now notified the Legal Services Commission of its intention to seek judicial review of the family law tender process.

Linda Lee, president of the Law Society, has said: “As a profession, we accept and are proud of an ethical code that is higher than pure commercial considerations. We have a duty to protect the public interest. A reduction in access to justice cannot be in the public interest, particularly when it affects the most vulnerable people in society, those who are seeking to establish their basic rights”.

If an agreement with the Legal Services Commission and the Ministry of Justice cannot be reached, the Law Society will bring the proceedings before the High Court. Further details of the Law Society’s preparations can be found here.

Other developments:

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Cuts to family law legal aid, prenuptial agreements, Tchenguiz v Imerman… Regular readers will have noted that I hold some strong views about the latest family law developments and their implications for divorcing couples up and down the country. So when Solicitors Journal invited me to contribute an editorial about the “key issues facing family lawyers right now”, the biggest challenge was to fit everything within my allocated column inches! You may be pleased to hear that this family law blog gets a mention.

Justices are fiddling with top-dollar divorces while normal families burn, says Marilyn Stowe

I have never known a summer like this one. For a family lawyer it is like standing in no man’s land, with the ‘haves’ on one side and the ‘have nots’ on the other. In more than 25 years I have never seen family law riven by such manifest inequality.

At the height of the holiday season, the Legal Services Commission (LSC) has slashed the number of firms offering family law legal aid by 46 per cent – from 2,400 to just 1,300. Pity the legal aid family lawyer now returning from a hard-earned summer break. The charter flight was probably delayed; the lawyer was probably laden down with kids and suitcases. They get up early to go into the office and face the correspondence that always arrives when you are away. But this time that correspondence is far, far worse: the lawyer has been thrown out of a job.

The LSC is putting lawyers out of business with the swing of an axe, while telling the media that it is “putting quality of services above cost”. I am pleased that the public is not buying this glib argument. The truth is that for clients, particularly those from less well off or disadvantaged backgrounds, justice has suddenly become less accessible than it was. Now it will be about having the means, while an already overloaded service collapses into meltdown. In the meantime, how many tragedies will there be?  Continue reading»

Readers may have learned from the media about the scandal surrounding the savage cuts to legal aid in family law cases. If you aren’t aware of what has happened, please let me enlighten you. You will be shocked, not just by what has happened, but also by the arbitrary, and incomprehensible manner in which the Legal Services Commission (LSC), which runs the legal aid scheme in England and Wales, has acted.

In summary, the number of firms able to offer family law legal aid as a service to their clients has been slashed from 2,400 to 1,300. This is a travesty that calls for judicial review.

At the beginning of my legal career I used to work voluntarily, giving legal advice at the Citizens Advice Bureau in a very rundown area of Leeds. I did it because I knew from my mum, who worked there as a volunteer adviser, of the desperate need for free legal advice  - particularly for abused women who had nowhere to go with their children after assaults by their partners.  By chance one evening, I met a very good-looking young lawyer doing exactly the same thing, because he cared too. And as the phrase goes: reader, I married him!

With another young lawyer, Arthur Bateson, Grahame had set up a legal aid law office in Leeds. After our marriage, which we dashed into within weeks because we had fallen head over heels for one another, the three of us joined forces and began setting up branch offices, always in the less affluent area and always to help the most socially disadvantaged. And we loved it. Continue reading »

When I read the Imerman judgement, there is one passage that jumps off the page and startles me. It is this reference to a marital lifestyle:

“If a husband leaves his bank statement lying around open in the matrimonial home, in the kitchen, living room or marital bedroom, it may well lose its confidential character as against his wife. The court may have to consider the nature of the relationship and the way the parties lived, and conducted their personal and business affairs. Thus, if the parties each had their own study, it would be less likely that the wife could copy the statement without infringing the husband’s confidence if it had been left by him in his study rather than in the marital bedroom, and the wife’s case would be weaker if the statement was kept in a drawer in his desk and weaker still if kept locked in his desk.”

I don’t know about you, dear reader, but my twenty-first century family home does not have a separate study for the master of the house, let alone two for both master and mistress.

Perhaps we would review our floorplan if we were both working from home  - after all, we have our separate offices outside the home  – but frankly, I doubt it. The idea that there could ever be a private room in our house, for one spouse only, from which others are barred except by invitation is wholly alien to me. I suspect that it is alien to all but a few of you too. We are married and we have agreed to share our lives. Everything is shared, including our day-to-day finances and the rooms in our house. In any case and as with millions of other families in this country, our budget doesn’t run to private rooms.

However it seems to me that in the Imerman judgement, the concepts of separate studies and separate finances are not regarded as anything out of the ordinary. That this should be so in a leading judgement delivered by the Master of the Rolls, a judgement that will lead to disastrous outcomes for so many divorcing couples in this country, concerns me greatly. Continue reading »

This post won Family Lore’s Post of the Month Award for July 2010.

Yesterday the Court of Appeal made a landmark ruling that has been described as a “cheat’s charter”. You can read the details here. I must warn you in advance that this is a lengthy post; however I would like to explore the horrifying implications of this ruling for divorce cases up and down the country. We will begin with an ordinary couple, and we’ll call them Jim and Mary.

Jim is a postman. He is married to Mary, a factory worker on a production line who gets paid £250 in cash every week. He doesn’t know what she does with her money. Mary decides to divorce Jim after 25 years of marriage. She has started an affair with Fred, his best mate. Jim is distraught. Frantic, he comes across 10 bank books and some Premium Bonds buried under some papers she has kept in her drawer by the bed. There is no lock on the bedside drawer and after 25 years, Jim knows exactly where to look. He can see that Mary has been quite cute, and the bank books show that she has managed to save a total of £50k – every penny she has earned in her working life – while he has supported her and their children. He notices she has even had a few wins on the Premium Bonds, about which he never knew. Furious, he phones his solicitor John, to tell him what he has discovered.

“She has £50,000!” he tells John, totally shocked by the discovery. “Ten bank books, wins on the Premium Bonds – I never knew! She was living off my money and all the time she was squirrelling away her own. Can I bring a copy of everything that’s here over to you?”

This time two days ago John would have said of course you can. Today he can’t. Because if he does he may be opening himself up to a civil claim against him and his firm by Mary, for breach of confidence and more besides. He wouldn’t be receiving the copy documents innocently. He would know that Mary doesn’t know he has them. And he would know she wouldn’t be best pleased about it. So even though John is acting as a solicitor in Jim’s best interests and putting the best case he can to the court – which is what Jim is paying him for – Mary could sue him.

“I’m afraid you can’t bring copies over” he tells John. “And what’s more, you can’t copy the bank books – or anything else for that matter.” Continue reading »

As a family lawyer, I like to think there is no dispute for which a solution cannot be found. No matter how polarised the clients are, and no matter how contrasting their arguments may be, at some point their disputes can and will be resolved.

This week at Stowe Family Law, for example, our children lawyers have been especially busy. We have been instructed in a number of contact and residence disputes.  Trying to conciliate the parents’ disputes, bringing them together peaceably for the sake of their children, can be challenging work – and these are challenges that our children lawyers face day in, day out. As you can imagine, they often encounter hostility and intransigence – but they never give up.  Our children’s department seems to have endless patience and sufficient stamina to keep plugging away. They seek to obtain resolutions to disputes, which may include where the children will live, sometimes the country in which the children will live, the time that each parent will spend with the children and so on. In children cases, the children’s welfare – not the parents’ – is paramount.

Every month, I review every client’s file. I am checking the legal content, but files can also begin to resemble serialised novels, with new instalments monthly. I am often anxious to know whether one case or another has been resolved – and if so, on what terms. Some cases settle and I am able to read the terms of the deal. Others continue, destined perhaps for court, but more likely edging towards settlements. Those cases reaching a full-blown hearing are likely to involve very difficult issues, such as mental illness or allegations of abuse. A judge may have to decide where a child should live and whether a child should see a parent at all.  Fortunately such cases are rare. The majority of cases feature polarised parents who begin at different ends of the spectrum and end up somewhere in the middle.

This week, however, the most unpleasant case of polarisation that I encountered had nothing to do with a child dispute. In fact, it involved a group of people with whom I have had few dealings before now. They are travellers, living on a site in Essex. By chance, I met some of them this week. Continue reading »

I have been reading a judgement that has recently been handed down by brand new appointment to the High Court Bench, Mr Justice Mostyn. I have been eagerly looking forward to what he has to say from the Bench and I’m pleased to say he certainly has not disappointed this reader. In this case he touches upon a subject that is often considered taboo, namely the competence of some of our judiciary. I should emphasise from the outset my own belief that the vast majority of our judges are indeed highly competent and experienced.

But Mr Justice Mostyn appears to be unhappy with the actions and findings of a District Judge below in a bitterly contested children case. That the case was fraught with difficulties, there is no doubt. But it is the manner in which it was dealt with by the judge that concerns him.

This case included a total of 17 days of hearings over a lengthy period. Thirteen other witnesses gave evidence, there were 300 pages of handwritten notes, a court transcript of the evidence running to over 1600 pages, and costs estimated at £120,000 for the father, who was paying privately. Similar sums were spent on the legal aid budget for the mother and the court-appointed Children’s Guardian.

It is unusual for an appellate court to set aside findings of fact in the lower court on the basis that the original judge is in a unique position to make those findings, having actually heard all the evidence. However, Mr Justice Mostyn set aside all the district judge’s findings and then enquired whether it was legitimate for him to conclude that “there was in fact no purpose to the inquiry at all”.

So it seems that nearly £400,000 – including a substantial sum of taxpayers’ money – was spent on a completely useless exercise. Ouch!

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It was quite a gamble to write about the Wedding Entrance Dance between the Conservatives and the Liberal Democrats before it had happened! At the time, nobody knew whether or not the parties’ negotiations would come off.

Last month I also wrote about one reason why I think divorce rates are falling: because a marriage is likely to be more successful when traditional roles and chores are no longer “reserved” for either husband or wife. Instead, spouses are sharing tasks – and women are no longer expected to juggle work and domestic duties with childcare, single-handedly and to the detriment of the marriage. Now a newly-published study concludes that divorce is twice as likely when husbands neglect housework. The findings support my own experiences and the changes in instructions that I have noticed amongst my clients. That exhausted drained wife-cum-housekeeper-cum-mother-cum-worker of the 1990s is a rarer find these days. Not extinct, but certainly less conspicuous.

So with my clearly very trusty crystal ball before me, what else do I predict for family law in these unsettled times?

Last night, watching an episode of the Tonight programme that was devoted to divorce, it struck me how shocking the cases featured were: the bitterness, the distress and the need to wash dirty linen in public. It was all extremely unpleasant.

Once again the irrepressible Baroness Deech popped up, fuelling the fire. I do not doubt that she means well. Lacking practitioner experience in the field, however, she doesn’t appear to appreciate how  her proposed changes to the law would make life even harder and more embittered for couples going through one of the worst times of their lives.

The programme focused upon a few spectacularly nightmarish cases. In reality, the vast majority of couples across the country settle their cases without a full-blown, contested court hearing. That they manage to do so is in most cases a result of the work done by skilled and experienced family lawyers. I was relieved to note that at the end of the programme, the presenter stated that the Ministry of Justice has no plans to alter the law in relation to financial settlements. Thank goodness for that.

But is the process for settling a case one that can be improved upon?

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Have you ever been to a wedding and on the surface, everything has been perfect? The venue, the dress, the food, the guests all look gorgeous; the bride and groom are blissfully happy, and their bridesmaids and flower girls with baskets of posies are enchanting? Could you, for example, imagine a better start to any marriage than the stunning, funny YouTube Wedding Entrance Dance (above)? Isn’t it fabulous? Isn’t the music wonderful? I don’t know whether or not that couple is still happy, but I certainly hope they are. They deserve to be, with friends and family like these.

In other cases, fortunately fewer in number, do you have that feeling that something isn’t quite right? Do the bride and groom want the same things for one another? Do they have similar goals and values? Do they come across as a couple who will stick together through thick and thin and, in 50 years, be celebrating their golden wedding?

When a divorcing couple finally meets up in the divorce process, whether at a meeting or in court, it’s amazing to me how most appear to have absolutely nothing in common with one another. There is nothing about them that makes them seem as if they could ever have been a real-life couple. It sounds awful to admit but sometimes, at a wedding, that is exactly how I feel about the bride and groom.

Don’t get me wrong: there are many marriages I attend that I am certain will remain rock solid. But there are others about which I have been less certain – and the outcomes have been sadly predictable.  Unfortunately, as I don’t seem to have been proved wrong yet, a word to the wise: it might be better not to invite me to your wedding if you don’t want a candid opinion, by which time it will be too late.

I recall acting for one bride who expressed considerable misgivings and wanted a prenuptial agreement in place. When I suggested that she might be better off not getting married at all, her parents both piped up that they had spent too much money on the wedding for her to back out. Three years and one child later she returned – and that prenup was successfully enforced. Continue reading »