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 »

The recent case of Vaughan v Vaughan, which involved an elderly divorced couple and made the news while I was away on holiday last week, has led me to wonder. How should a husband divvy up the spoils of a lifetime between his former wife and his current wife? When he has continued to maintain them both during his working life, which one of them -if either – should be his priority?

The first wife

The first wife cannot manage on her own, modest earned income following her divorce, and therefore she needs to have her income supplemented by maintenance from her former husband. He agrees and despite her being child-free and able to work, he does not insist on a cut-off point for maintenance even if she is still quite young. Perhaps he reasons that she will be self-sufficient at some point in the future. Perhaps he reasons she will remarry. Perhaps he feels guilty. Perhaps he wants it all over and done with without a fuss.

However the first wife will never get to taste the real fruits of their joint hard work begun and built up during the marriage. The rewards of status and financial success will be privileges reserved for the fortuitous second wife. By the time the second wife marries the husband and has his children, he has become financially prosperous. Together, they have a long and successful marriage.

The husband can always apply to terminate maintenance payments to his first wife, on the basis that at some point she should or has become self-sufficient. But there are a number of cases in which the divorce occurred at a time before wives were expected to become self-sufficient and maintain themselves. Continue reading »

As noted in my previous post about Hildebrand Documents, the recent ruling of the Court of Appeal in the Marco Pierre White case alarmed me. I would like to look at the judgment in detail.

I must warn you in advance: this is a lengthy post. However if you are a family law practitioner in England and Wales, are you aware of this judgment’s implications?

It appears to be the case that, even if you have advised a client in accordance with accepted Hildebrand practice in the family law courts, you could still potentially be liable to the opposing spouse in civil law.

I have previously described my experience of a Hildebrand case and the decision that I was called upon to make in a matter of minutes. Would I inspect the three boxes of documents that my client had delivered to our offices, even though I believed that she had obtained the documents illicitly? With the alarm bells ringing, I decided not to do so. Instead, I chose caution.

Lawyers can find themselves sued for damages if documentation taken secretly by their client is copied and used in court, and the client’s spouse takes exception to this. Admittedly such a case may not get off the ground because damage may be too minimal, but in theory at least, lawyers could be liable.

In my case I had every reason to suspect that the Hildebrand Rules, as they are known, had been breached by my client. The generally acceptable defence available under Hildebrand would therefore not apply to her or to me. We could both have been sanctioned and sued by her husband and by his company, which was an entirely separate entity.

Now it may be the case that the generally acceptable defence under Hildebrand does not protect legal practitioners or their clients in any such case at all.   Continue reading »

In the last post about coping with divorce, I wrote about how distressing the divorce process can be and how, to emerge whole at the other side, it is vitally important to do whatever it takes to keep your mind in shape.

This post is a cautionary one, about what can happen if you give in to those demons lurking in your head. I have previously written about the dirty divorce tricks born of the desire for vengeance. Earlier this week I described how bottled up emotions can result in emotionally charged choices and behaviour. Now I wish to look at how the repercussions can affect younger members of your family.

During a divorce you can be tempted to surrender to those demons, to let your baser emotions spin of control, to fight and to cause pain. However the opportunities to do so are limited. This is because the legal procedure is strictly controlled in financial cases, as misconduct is rarely of relevance and is generally frowned upon by the courts.

Proceedings involving children are different. In such cases allegation upon allegation, true or malicious, can by heaped upon parties in ”the children’s interests”. Common sense and rational thought can fly out of the window.

You mustn’t go there. But some people do.

After 26 years as a divorce lawyer, I am not easily shocked. While reading some recently reported children cases, however, I was taken aback by the bitterness and malice that leapt from every page. Continue reading »

From the comment pages of The Independent, 03/07/09.

No longer the capital of divorce

By Marilyn Stowe

Yesterday, I thought about placing a bet on the outcome of the Radmacher v Granatino case. I would have backed the outside chance that the Court of Appeal would uphold the pre-nuptial agreement, even with all the odds stacked against me.

English law doesn’t automatically recognise such agreements. It is about needs, obligations and distributing assets and income fairly. Yet, I thought, times have changed. We are living in a European country. English law gives the courts discretion to reinterpret the law. Would the same judges who once pooh-poohed pre-nuptial agreements dare to change their minds? They did. Continue reading >

From the Guardian’s comment is free blog, 07/04/2009.

Brian Myerson should abandon his bid for his £9.5m divorce settlement to be set aside, but he’s a risk-taker.

By Marilyn Stowe

The City tycoon Brian Myerson has been pilloried in the press after failing to convince the court of appeal to set aside the £9.5m divorce settlement that he must pay out to his former wife. He argues that the economic downturn has “rendered his divorce settlement unfair”, because it will now leave him half a million pounds out of pocket.

In truth I feel a little sorry for Myerson. As a family lawyer, I have encountered many men of his ilk. They are sharp-suited, high-flying Big Boys: fabulously confident, fabulously wealthy and fabulously successful. They play hard – and they always play to win.  Continue reading >

Wives and mothers usually wish to remain in the marital home – but it isn’t always a good idea to postpone a sale.

A Mesher order is a court order that postpones the sale of the marital home and gives a chargeback to a husband exercisable on the occurrence of specified events. It originated in an eponymous case in 1980, when the Court of Appeal permitted the wife to remain in the marital home with one child until the child was 17 or further order of the court.

When there are no children, the court can still make a similar order for one party to remain in the marital home and thus postpone the sale. This is known as a Martin order, after an eponymous case in 1978, when the Court of Appeal held that the wife could remain living in the property for the rest of her life. The court postponed the husband’s interest from being realised until then, having found that the husband had no immediate need of a capital sum, and the wife would have had insufficient equity to re-house herself had the marital home been sold.

These types of orders were common in the 1980s and 1990s, when there was a need to keep less wealthy mothers and children in their homes, because there would have been insufficient capital to re-house them. They fell out of fashion because they were fraught with difficulties. These difficulties surfaced when the time periods expired and the houses came to be sold. Continue reading »