Last summer I visited Porto Ercole in Tuscany, Italy. There, I reflected on some recent family law cases – and the lack of change in human nature since the time of Caravaggio, who died on the rocky beach I was visiting and is buried nearby.

Caravaggio was a master of human nature, which he summarised ably in his paintings. No-one knew more than he of the flaws in the human character, which can lead to profound suffering. He inflicted suffering, and suffered for it. He lied, cheated, gambled and murdered. He was wracked with guilt thereafter, yet left a peerless legacy to the art world: some of the most descriptive, moving and greatest paintings ever produced. Caravaggio knew the nature of torment.

It is 400 years since he died and until 10 January this year, the Borghese Gallery in Rome exhibited some of Caravaggio’s artwork together with that of 20^th Century artist Francis Bacon. Another artist who has been called “a tormented painter”, Bacon has also been  described as “one of the most anguished artists of the 20^th Century”. He had a fascination with the Crucifixion and an open mouth, a Scream. These two artists were featured together: they may have lived four hundred years apart but according to Anna Coliva, the director of the Borghese Gallery, they are “linked by a deep suffering for the human condition and an internal sense of devastation”. It was quite an exhibition. Immensely moving and thought-provoking, it was a stunning success.

Shortly after the Rome exhibition ended, a case called K v L resurfaced in the English courts. It is the same case that troubled me when I was in Porto Ercole, and about which I wrote at the time. It concerns a convicted paedophile who attempted to claw a share of his former wife’s fortune. Unable to bring herself to face him in court, she had resorted to giving evidence through a video link-up.

The husband subsequently attempted to appeal an order in the ancillary relief proceedings, and his application was heard in the Court of Appeal a few weeks ago. This case continues to trouble me. Why must the wife be the tormented one of the pair? Shouldn’t it be the other way around? Continue reading »

Some recent, and surprising, court decisions from offshore jurisdictions, namely Bermuda and Jersey, demonstrate the fluctuating levels of cooperation that the English family courts can expect to receive in divorce cases.

In English divorces when there are offshore assets, often held in offshore trusts, it is common for wives to meet with resistance when they try to find out information about those assets or trusts from their husband.

One way of remedying this is by issuing Letters of Request. These are letters from an English court to the appropriate authority (usually a court) in the other jurisdiction requesting information about the assets or trusts held in that country. The letter is written by your solicitors, who then apply to the English court for its approval and to request that it is sent. The English court can, and frequently does, amend the content of the letter.

After receiving the letter the authority in that other jurisdiction can choose to do three things: Continue reading »

In my previous post I set the scene in a hotly disputed area of law: maintenance payments and the ex-husband who resents paying after his former partner begins living with another man.

The Court of Appeal has issued a judgement (Grey v Grey (2009EWCA Civ1424)) that should help to resolve this grey area, even though it will mean wives who choose to cohabit could stand to lose their maintenance. Put starkly, in line with changing social attitudes the pendulum has swung away from dependent wives. They may now be faced with very tough choices post-divorce: do they live with someone, or keep their maintenance?

Grey v Grey

This case involved a wealthy couple in their thirties, whose 10-year marriage had produced one daughter. When they divorced the capital was divided equally between them, and the judge set Mrs Grey’s maintenance at more than £100,000 per annum.

The husband subsequently appealed this award, on the basis of his ex-wife’s relationship with a man called Mr Thompson. The wife hotly contested the claim that she was cohabiting. Unfortunately for her, she lived on the same street as her former in-laws. Mrs Grey’s former father-in-law and an enquiry agent carried out observations which showed she was indeed living with him, a fact that she persistently denied through her solicitors and later in court.

Worse still for Mrs Grey was that her former husband had also discovered that she was pregnant. His legal team ambushed her with this revelation during cross-examination in court. She admitted her pregnancy and that she was “in a fixed, committed relationship” that was permanent in nature. (At which point I can imagine her legal team fiddling with ties, looking intently at blank bits of paper and staring, stony-faced, into the distance!)

Continue reading »

Your ex-wife has moved on and is now happily living with a new partner. They are in a stable, supportive relationship and he doesn’t seem short of cash. So why are you still paying her regular maintenance?

Maintenance payment is one of the most divisive issues in family law. Over the course of two posts I’m going to consider why maintenance orders exist and the emerging case law which means they might be more readily challenged in the future.

Most financial settlements between divorcing couples consider only the “reasonable needs” of the parties involved. They or the court will share out the assets – capital and income – ‘fairly’ so they can both cope financially as they move forward with their new lives. In such cases, there often isn’t any surplus money to fund a “clean break” between them. The wife has no income, or earns far less than the husband, and so needs maintenance payments from her husband to support her. Sometimes these payments have a cut-off point in the future, by which time the wife is expected to be self-sufficient, but often the order is left open-ended because she has care of the children, or has no realistic prospect of earning a reasonable living in the future – or both.

Maintenance therefore remains payable by an ex-husband to his ex-wife, often with an automatic uplift linked to the Retail Prices Index, until the wife remarries, dies or the court makes a further order. Until then she receives tax free maintenance, which she regards as the income earned as a result of their marriage.

This doesn’t happen in mainland Europe, there maintenance is not payable to an ex-wife. She is expected to manage with an equal split of matrimonial assets and if necessary go to work. The husband keeps his income intact save for child support payments. There is no doubt that this causes great financial hardship, and in England the law recognises this fact and provides accordingly.

But suppose both parties move on with their lives and they both acquire different partners?

Continue reading »

Do you or your spouse currently use an offshore tax avoidance scheme?

If you do, and you are also considering divorce, I recommend that you take notice of a recent legal precedent that means Her Majesty’s Revenue and Customs can now close tax loopholes retrospectively and claw back unpaid taxes from trusts which have benefited.

We often see cases at Stowe Family Law in which husbands (more than wives, in our experience) have invested in elaborate tax avoidance schemes. These arrangements have been mostly disclosed during proceedings, but they become a Trojan horse when the Inland Revenue declares they might lead to a huge tax liability in the future.

The case I mention above concerns a self-employed IT consultant called Robert Huitson who set up a tax avoidance scheme in 2001 which took advantage of the Double Taxation Treaty between the United Kingdom and Isle of Man.

The Finance Act 2008 made Mr Huitson’s arrangement illegal and HMRC handed him a bill for £100,000 in unpaid tax. He claimed he couldn’t pay the bill as he had spent all of his income during the period on his lifestyle.

He was not alone. By the time the Finance Act 2008 came into force there were around 2,500 taxpayers exploiting similar arrangements, and the amount of income tax at stake was £100 million.

Continue reading »

As family lawyers, we talk a lot about needs when we advise our clients. We talk of capital needs for housing, transport and to redeem liabilities and income needs to meet ongoing annual and monthly expenditure. Needs are trump cards for arguing for a departure from an equal division of capital for a wife with children who cannot otherwise re-house, even if it means taking inherited assets away from the beneficiary in some cases. Needs apply equally to income as to capital, and are an important concept in family law.

Within ancillary relief proceedings, each party will give full and frank disclosure of their financial situation. As part and parcel of that disclosure process, each party must also complete a budget sheet, setting out what they say they need to meet their outgoings. We provide all Stowe Family Law clients with a budget sheet at the outset of the proceedings, so that they can consider their own needs early on.

I thought of this as I read an article over the weekend in the Saturday Telegraph Magazine, about a family who had been asked to account for every penny that they had spent in a month. The point of the article was to highlight whether we are in fact aware of what we spend, even in the current recession driven economy. The couple in question were successful, with an income of £150,000 per annum, an income that most people would consider enormous, yet they were still spending more than they earned. Continue reading »

 A recent case involving the fiery chef Marco Pierre White has sent shivers down the spines of family lawyers.

Last week White, who has been estranged from his wife Mati since 2007, won his appeal against a High Court ruling that had halted his bid to seek damages from his wife’s lawyers for wrongful interference with his property.

The action relates to documents including a contract from P&O and a heartfelt letter from White’s daughter by an earlier marriage, which White said he had never seen until the originals were produced by his wife’s lawyers in court. In the Court of Appeal, Lord Justice Ward noted that Mati White had removed documents following alleged threats from White – which White denies – that she would not get a penny and that he would “pull the plug” on everything.

Full disclosure

In my next post I will examine the judgment in greater detail. In the meantime I would like to take a look at disclosure and clients’ concerns. In matrimonial proceedings both parties have an obligation to provide full, frank and clear disclosure of their financial position to the court.

It is common for clients to seek advice as to the steps that they may take to collect evidence. This happens when a client suspects that a spouse will not provide full disclosure. In cases such as these, clients often want to turn detective and uncover evidence that they believe will otherwise remain hidden. Continue reading »

A couple of recent decisions have caught my eye. Both cases involve divorce and draw upon Article 6 of the European Convention of Human Rights (ECHR).

Paraphrased, Article 6 reads as follows.

1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In Imerman v Tchenguiz and others (2009), EWHC2024, the fabulously wealthy claimant was businessman Vivian Imerman, who is estranged from his wife. He sued his brothers-in-law, the property billionaires Vincent and Robert Tchenguiz, with whom he previously shared business interests.

Mr Imerman claimed that the brothers had downloaded private information from a shared computer system without his authority. He claimed that they had then misused that information, by handing some of it to his wife and her lawyers. The information was deposited with the court after Mr. Imerman began divorce proceedings and will be the subject of a family court hearing in the divorce proceedings later this year.

Did the Tchenguiz brothers have a defence? They thought so. They contended that their actions were taken “in accordance with the administration of justice.” They argued that Mr. Imerman had no intention of making full and frank disclosure, that Mrs Imerman was entitled to “equality of arms” and that her rights under Article 6 required protection. Continue reading »

I have been fortunate enough recently to attend two horse racing events. I love the races, even though I’m not much of a gambler. The sleek lines of the beautiful horses, the roar of the crowd, everyone dressed up to the nines; intent on having a really good time and celebrating the King of Sports.

A few weeks ago I was a guest for the day at Goodwood Races. Thanks to the British weather, it didn’t quite live up to its ‘Glorious Goodwood’ name! Sheltering from a downpour when the heavens opened, an elderly lady wearing a pink hat started talking to me. She was in her late 70’s but looking closely at her I was amazed because she had the most beautiful skin I had ever seen – and the most stunning, piercing blue eyes. As we were talking she pointed out her daughter, who although very smartly dressed, was running around with buckets directing staff to mop up the rain.  At that point, recognising her daughter, I realised I was talking to the very famous Bronwen Viscountess Astor – the first ever “Supermodel” and whom the couturier Pierre Balmain said was one of the most beautiful women he had ever met. I could well understand why.

There is a biography of Lady Astor, and on the front cover she is photographed in her modeling days, wearing a gorgeous hat. A few days later my knee was playing up so I decided to take a walk round Harrogate to try and walk it off. As I reached the bottom of the hill past Betty’s Tea Shop, I walked past a dress shop and – there in the window – was almost the same hat. It was the same shape and size. It was stunning. It was obviously waiting for me!  I thought it was perfect for the Ebor Festival I was due to attend so I tried it on and on impulse, I bought it. I liked that it was possile to hide beneath it. I could see …but not be seen. It proved very useful.

I wore it to the Ebor in York two days later, where I was lunching with the chairman of the York race committee and his guests. It was very grand, and they were very pleasant people, all experts in the racing field whilst I was clearly a novice. The conversation at lunch veered away from horses only once – to John Cleese and his divorce. As the conversation came round to divorce it was easy for me to incline my head with my large hat and avoid taking part in that conversation! They were discussing the article in the Daily Telegraph which I had read that morning and thought was very cruelly written against his wife, Alyce Faye. She was portrayed as a gold digger, a jumped up nobody from a council house who had wanted, and got, far too much money at the end of the marriage.

Continue reading »

I wanted to put my last post, about the Centre for Social Justice’s plans for cohabiting couples, into a factual and legal context. The couple I am about to describe never gave a thought to the nightmare “what if” scenario that exists for modern day cohabitants. Their experience is a salutary example to the millions of other couples who are “non-people” in the eyes of the law because they are not married.

The case, Webster v Webster (2009) 1FLR 1240 was heard on 13 January 2009 before His Honour Judge Behrens in my home city of Leeds.

I have decided to write about it precisely because it is an “everyday” case, not a glamorous one at all. The facts are unremarkable. The man and woman lived together for 27 years and had two children. Their family home was registered in the man’s name only. The man also had three children from a previous marriage.

Like most couples, both parties worked. He earned far more than she did, but both contributed fully to the household expenses. Then, aged 54, the man unexpectedly and suddenly died from a heart attack. He died ‘intestate’, meaning that he left no will.

For the woman this was a disaster – not only emotionally, but also legally. Had she been his wife she would have been entitled to inherit her share of the estate, automatically under the intestacy laws. Continue reading »