A blog reader enquired recently about the cohabitation legislation in Australia, asking: “Are you familiar with it and its effects and what is your opinion?”  This was an interesting request, so I asked Jenny Wilmot, a talented trainee solicitor here at Stowe Family Law and Christopher Othen, a senior associate at Sydney family law firm Barkus Doolan Kelly, to take a closer look.  Many thanks to both. Jenny has written a new post about their conclusions.

In a previous post, Cohabitation: England v Scotland, I predicted that the rather radical Cohabitation Bill put forward by Lord Lester in 2008 may have been too extreme for our government to accept into our legislation. I based this upon the fears that had arisen around the more moderate recommendations made by the Law Commission in 2007.

Had it been passed, the Cohabitation Bill would have given greater statutory protection to cohabitants, allowing the court to make a financial order if it felt that it was just and equitable to do so. The court would have had to take into account much of the same factors as it does for couples settling finances after the breakdown of the marriage, including the welfare of any relevant child, the length of cohabitation, contributions of each party (financial or otherwise), income and other financial resources and financial needs and obligations of the parties. Cohabitants would also have been given a chance to “opt out” of this process.

While this rather ballsy attempt by Lord Lester was supported by many family practitioners around the country, it still remains somewhat of a political impossibility for the foreseeable future. For some, the consequences of going further than the Law Commission’s conclusions would be too high.

A look at international variants of cohabitation law, however, can help us to view the situation in England and Wales in context. I have previously written about the Scottish system which does not give separating cohabitants the same rights as divorcing spouses, but does give weight to the fact that couples who have lived together for more than a year may be entitled to some financial rights, when one party has suffered an economic disadvantage due to the separation or if the defender has derived an economic advantage from the applicant’s contributions.

In Australia, cohabitation law goes further still. It has recently been amended following the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. Continue reading »

On 15 October 2009 The Times published an article with the headline, Why is it so difficult for law students to get a first? The feature, by Rebecca Attwood, suggested that students reading other subjects are more likely to achieve the highest degree.

That piece was quietly read, noted and bookmarked by one Ben Stowe, known to readers of this blog as my son. Eight months later and just as quietly, without fuss, he sent it to me on my Blackberry to read today.

Ben is also the person whose washing regularly causes hassle for me, arriving as it does in at least three full bags on Saturday mornings, when I’m puffing away on my Wattbike trying to keep fit. But with perhaps more than a little help from my husband, we have managed fine…

When Ben was a little boy, the first hurdle for me (not him) was getting him into the “right” school. We chose it with care; noting how all our friends were competing to get their children into the same place, we put Ben’s name down for Leeds Grammar School when he was all of two weeks old. When I look back I must admit that I entered into the “competitive mummy” thing wholeheartedly. I would notice how every other child was quick to walk, quick to talk and so on. I would also notice, through gritted teeth, how every other mummy used to pretend she wasn’t thrilled to bits with her high achieving toddler when I could see very well that she was.  Ben had other ideas. He wasn’t the slightest bit bothered to compete.  Instead he was a quiet, self-assured boy, who took his time and was disinclined to pit himself against the other children. No matter how much I pushed him to be more assertive as he got older, he just used to mutter, “Mum, you’re embarrassing me!” That was it. He knew me and I knew him. Neither of us changed. Continue reading »

On Saturday afternoon I found myself in the menswear department of Marks & Spencer having a joke with the sales assistant. I asked her to put the till receipt in the bag because the goods I had bought that she was carefully wrapping would be coming back on Monday morning.

“I don’t know why I’m buying them at all”, I told her. “It’s Father’s Day tomorrow and whatever I buy I know for sure my dad won’t like it. So it will all be coming back, there’s not the slightest doubt about it.”

I left after she said she would be sure to keep an eye out for him when the store opened on Monday morning.

I had spent about thirty minutes choosing a sweater for him – after I had first decided that Marks & Spencer would be the best bet for a Father’s Day gift for my fussy dad.  If I went anywhere else, chances were he’d criticise my choice of store by saying it was too modern. I finally selected a bright blue cashmere V-neck. After wondering whether or not it was too bright, I decided to take the risk and on impulse also bought a pale blue check shirt to go underneath. They looked really nice together and I thought even my picky dad would like them.

I also bought him a card. It read: “In children’s eyes dads start off ten feet tall”.  And inside: “And in my eyes you’ve stayed that way”.

It was a simple card but I liked the words and bought it. Then driving home and reflecting on those words, I started to think about dads who would not be seeing their children on Father’s Day, particularly in the context of a second recent judgment by Mr Justice Mostyn.

What price the parent-child relationship?

In the case (AR (A Child: Relocation) [2010] EWHC 1346) Mr Justice Mostyn had to make a decision about whether or not a mother could remove her children from the jurisdiction of the Court, so that they could go and live in France.

As he acknowledged, this type of judgment is one of the most difficult that judges ever have to make. This is because it condemns the remaining parent, usually the father, to losing the relationship they had with their children for most of their childhood, if not most of their lives. Once a child makes a new life in a new country, retaining emotional and practical ties with a father in a different continent becomes nigh on impossible. That is unless the family is very wealthy and can afford to make regular transnational arrangements that really work, including regular travel, domestic and social arrangements, education and so on. Such arrangements can make it possible for the children to retain two (or in some very wealthy cases, even more) genuine homes in different countries.

In most cases however, departure from the jurisdiction prompts a real-life tragedy, with the father and his children severing their links with one another. What price can be put upon a child’s relationship with his or her parent? Isn’t preserving that relationship, at all costs, far more important than anything else?

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!

Continue reading »

I was interested to read in The Times that a barristers’ chambers in London has set up a company that will arrange funding in divorce cases:

“Steve Jones, its business development manager, says: “It’s a way of reducing the balance between unequal parties where one has resources and one hasn’t — giving access to justice.”

“What is striking is that the set itself does not stand to gain directly from this venture. Divorce is not its area of expertise so it is referring the case to other specialist barristers and solicitors. It is acting as the middleman, or broker, arranging money with one of the 14 companies now providing what is called third-party litigation funding. “We don’t take a percentage or brokerage fee — we benefit in goodwill,” Michael Martin, the senior clerk, says. “Solicitors may refer cases on to us — it’s good old-fashioned rain-making.””

I believe that, contrary to what is stated, litigation funding is more generally available than is suggested in this article, at normal commercial rates from high street banks when clients need funding for their divorce. We don’t organise it; our clients do. However problems do arise with cases where the assets are very difficult to trace, or are offshore, or are in the husband’s name. Then banks are understandably reluctant to lend without security. In such cases a Sears Tooth Agreement may be appropriate. If not, and as a last resort, the husband may be ordered to pay out of his monthly income towards the wife’s costs. Continue reading »

Earlier this week I had a slightly surreal experience. I found myself in the Crypt of St Paul’s Cathedral, standing between the magnificent marble tombs of the Duke of Wellington and Lord Nelson. I also spotted the tomb of Sir Christopher Wren, the architect of the “new” St Paul’s after the “old” St Paul’s was destroyed in the Great Fire of London in 1666.

This is arguably the most famous and iconic building in London. It stands on Ludgate Hill and is visible for miles from every direction. In order to enter the Crypt, I had to walk up the magnificent white steps and down the main aisle. I remember watching the young Lady Diana Spencer doing exactly the same, in 1981 when she married the Prince of Wales. How did she cope?

I turned right and went down the marble stairs into the crypt, followed the noise and eventually passed the tombs of the great men (and their banners) to join the Summer Party hosted by the Barristers’ Chambers of 1 Kings Bench Walk. Hosted in this striking venue and with excellent food and company, this must count as one of the legal parties of the season. As there was a long drive back up to Yorkshire I could only stay for a couple of hours, but there were many family lawyers there and it was good to see them. Many thanks to my hosts for a wonderful event.

Image credit: edvardo.

Suppose that you are going through a very nasty financial case in the course of your divorce.

Suppose that your former spouse is behaving very badly during this process.

Suppose you both know that the court is likely to make the usual costs order in the case, with each side being asked to pay their own costs.

The party who decides to behave badly decides there is not much to lose. This party takes a gamble and increases their own costs in an effort to minimise the eventual settlement, safe in the knowledge that he or she will not have to pay the costs of the other side.

On the other side the frustration is clear. Costs are going through the roof and a nasty game is being played out. It is extremely difficult to find out what the opposing spouse is worth at all. Smokescreens and mirrors prevent anything other than a lengthy and convoluted legal process. The stronger spouse, confident the weaker one is getting nowhere, makes derisory offers.

It is pretty clear to all concerned that the intention (usually unspoken, but obvious nevertheless) is to rack up costs as much as possible, raise as many obstacles as possible to avoid disclosure, to avoid coming to the table and in general, to make life as hard as possible so that those derisory offers become more “palatable” as an end to this protracted saga.

This type of behaviour is not uncommon, especially when a spouse has much to lose. One of the worst examples I encountered recently was a client who told me her husband had telephoned the solicitor she had previously instructed, and personally threatened him and his firm with ruin if they touched her case. When she instructed another firm, he did exactly the same.

Suppose you are at your wits end, you are approaching court and you believe that you will ultimately succeed. However your costs have cleaned out all your savings. You desperately need to have your legal costs met, or your struggle will have been in vain. What can you do about it? How can you make the court depart from the normal “no order” principle?

Here is my advice: Continue reading »

Divorce lawyers are used to changing sides. During a typical day, I might see a wife whose husband has left her for another woman. Afterwards I might advise a husband who has left his own wife for another woman. Then I might see a woman who is leaving her husband for another man. Finally, a husband whose wife has left him. I advise them all; it is second nature to me now. Overall I believe that such experiences give me a balanced view. I can give good, objective advice because my recommendations are based on knowledge that comes with having acted for different people caught up in different situations.

Sometimes the media also become involved in my cases. I know and have worked with a number of journalists, and I admire them greatly – but sometimes I find that others accept a “good story” in good faith, regardless of its veracity. After all, it is easy to simply reproduce a press release.

Not so long ago I read a story about one of my own clients. The story had cascaded across the media and I knew for certain that it painted a picture of my client and a particular situation that was, frankly, erroneous. My client declined to respond and faced this unwanted media attention with great courage and dignity.

At Stowe Family Law we regard client confidentiality as paramount; elsewhere, however, the circulation of press releases by or on behalf of clients going through divorce appears to be growing. In my experience, the courts are becoming wise to this and pay little attention to it. In my client’s case, that certainly happened. Continue reading »

One of the saddest realities of family litigation is that a death is not necessarily the end of the arguments. The majority of family litigation concerns a fair division of the property acquired during a relationship, and how to provide for the futures of a couple who have separated.  It includes how to look after any children that they have had together.  A small minority of cases, however, arise after somebody’s death.  Sometimes there are question marks over whether or not the Will left behind was properly executed.  More commonly, there can be an issue about whether or not the Will (or where there is no Will, the rules of intestacy) makes reasonable provision for the deceased’s family and dependants.

Of all the disputes we deal with, I have to say that these cases come close to being the saddest.  Only cases about the care of children consistently depress practitioners more.

There are two great myths about what happens with someone’s property after they die.

Myth 1 – Whatever is in the Will is sacrosanct.

“If you haven’t been left anything, there is nothing you can do.” Wrong!  1975 saw the passing of the catchily titled Inheritance (Provision for Family and Dependants) Act.  Although it does not trip off the tongue easily, it is an important piece of legislation.  Parliament recognised that sometimes the Wills made by people, or the rules of intestacy when no Will was made, could simply be too harsh to the people left behind.  Why should a husband or wife of many years receive next to nothing at the deceased’s whim?  Why should somebody be left to depend on state benefits when actually there was plenty of money or property, but it was being left to somebody else?  One of the purposes of government is to deliver outcomes that are just and fair.  Parliament therefore acted to give the courts the power to deal with situations that were plainly unfair. Continue reading »

The Scottish singer KT Tunstall described Nature as “An obviously omnipotent force with the upper hand”, and ourselves as “Only guests. As long as we are graceful appreciative lodgers, the earth remains healthy and wondrous”.

She is right. Nature, if angered, has the power to wipe out a civilisation and paralyse established ways of life for millions of people. Nature is timeless, majestic, and unbearably beautiful, but at will it can become the most ruthless of all our enemies.

Natural disasters remind just how powerful and indiscriminate it can be, with hurricanes, typhoons, floods, earthquakes and volcanoes transforming peoples’ lives in an instant.

I thought this a few weeks ago, when I was looking at Mount Vesuvius from my hotel in Capri. You couldn’t miss the brooding mountain: it loomed out of the mists, across the bay of Naples. It was a constant reminder of what had happened when it erupted thousands of years ago. Any visitor to Pompeii cannot fail to be horrified by the way it destroyed an entire population and its way of life, leaving only a terrible legacy in its wake.

Already I have heard from some of my clients about how they were affected by the recent Icelandic volcano eruption. As ash rose into the sky, the world had to stand still as flights were grounded. In this space age century, an erupting volcano on a tiny island in the most northerly part of the northern hemisphere wreaked havoc on the entire globe…

One of my clients and his family were in glamorous Dubai when the flights were grounded. The holiday over and unable to return to the UK, they were obliged to pay increased room rates every day their stay extended. With no end in sight, and hotels swamped with people desperate for a room, tempers were fraying and arguments began. Luckily my client has a home in Jordan and the family took a flight, which was unaffected by the ash cloud, to Amman. There they waited in the comfort of their own home for a flight back to the UK.  In this instance relationships reverted to normal, the stress was over and the family survived intact.

Not everyone was so fortunate. Continue reading »