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 »