For example, in the past few days a reader called Lily has left the following request in the comments section of a post about my appearance on GMTV in early 2010.

“Hi! I need some information about financial settlement for divorce. I was married for 5 years and I left the marital home rented a new flat and took my 5 year old daughter with me. He was controlling and used to threaten me. It has been 1 year and a half that we are separated. The divorce is going through. I’m the petitioner and the judge agreed to unreasonable behaviour. Decree nisi will be granted tomorrow. The child contact it was agreed by the court through a contact order so he sees her every other weekend and half of school holidays. My question is he is saying he will not sign any clean break or any settlements. As I left home he says I’m not entitled to anything. But by law I know I am. The house is in his sole name. He used to pay the mortgage but I used to pay all the utility bills. When I left my solicitor put a charge on the house but I can’t afford solicitor no more, I don’t know what to do now. Do I have to apply to court to decide the financial bits? To be honest I’m not that interested in house but I’m worried that there was some debts in both names that not been paid. Thanks for your time.”

Sometimes I don’t have enough information to answer detailed questions from readers, but this one caught my eye and I can answer it on a general basis because what Lily wants is some general advice about what she can claim financially upon divorce. I’m happy to give her a reply and I intend to do so in a novel way for this blog.

On Wednesday 8^th February I will be answering similar readers’ questions in real-time from 2pm to 4pm in our forums. If you have a general question concerning the financial implications of divorce that you would like answering, then please post it over the coming week, or during Wednesday afternoon. I won’t give you detailed advice as to what you should specifically settle for, or how to resolve your dispute with the CSA, because only a lawyer retained by you can provide such a level of professional support. But my advice is given entirely free of charge and without liability.

So I am happy to guide you and the rest of my readers along the journey and if you would like to write to me on that basis then I’m happy to provide an opinion.

Your questions could concern:

·        Financing divorce proceedings and costs

.        The process

.        The Law

·        Financial disclosure – pitfalls

·        Maintenance arrangements, interim, term or lifetime

.        The impact of cohabitation on maintenance

.        Bankruptcy

.        Pensions

.        The division of Matrimonial and Non-matrimonial Assets such as inherited, and pre-acquired assets

.       Trusts

.       Children

It is a huge subject and understandably readers have their concerns. I look forward to your questions and will endeavour to answer all of them. Please pose all questions on the forum, as you are unable to comment on this post.

The subject matter came to mind a week ago when I was doing a spinning class in the local gym -I couldn’t help noticing that there are a lot of ‘glammed up’ men and women who never end the class looking as bad as me! It set my imagination going, and gave me something to concentrate on through a long spinning session and this post is the result. So far over 700 US readers have left comments on HuffPost Divorce and it is now tagged as one of its Most Popular posts. It has also been reprinted in various languages across the world. I’m really thrilled that my thoughts have transferred with such overwhelming approval to an American and worldwide audience.I hope you enjoy it too. I do like being called “Attorney Stowe”!

HuffPost Divorce was inspired by HuffPost’s thrice-married editor-at-large Nora Ephron, best known as the screenwriter of romantic comedies including When Harry Met Sally… and Sleepless in Seattle.  It was Nora who came up with the section’s tagline: “Marriage comes and goes but divorce is forever…” Since its launch, HuffPost Divorce has gained a community of loyal readers and, if you are currently going through separation or divorce, I recommend that you take a look.

To read the Top 10 Stereotypical Marriage Wreckers, click the image below.

What would you like to know about divorce?

Many first-time visitors to this blog arrive after searching for answers about divorce and family law on the internet. Others submit enquiries directly to the comments section on this blog, or contact me directly.

Today (Tuesday 10 January) I appeared on the sofa alongside Phillip Schofield and Holly Willoughby on This Morning to offer advice to viewers.

If your question wasn’t covered, please feel free to add it to the comments at the bottom of this post.

One topic that arose at the end of the programme was the annulment of a marriage. For anyone wondering about whether or not they can annul their marriage (if it was celebrated in England and Wales) this excellent government website will give you all the information you need.

The distinction is made between void marriages and voidable marriages. A void marriage has never existed, while a voidable marriage does exist, but can still be annulled. A void marriage should also be annulled, as explained on the website.

It’s an interesting and technically complex area of the law. Further issues arise  if a marriage in this country has not been celebrated in accordance with the requirements of English law. Can the marriage still be recognised in law?

There are also issues involving marriages celebrated abroad, and whether those marriages can be recognised.

All these topics will be covered by me in later posts, but this weekend, after a hectic week in our offices in both London and Yorkshire, I’m going to have a well-earned rest!

I hope everyone has a very good weekend,
Marilyn

Over the festive period I gave you a

We had a number of fantastic entries and I’d like to thank you all for taking the time to submit your thoughts. As the issues surrounding the case were very much related to children law, the Head of our Children’s Department, Stephen Hopwood, will explore the scenario and announce a winner.

It is also worth noting that a Government announcement made today concerning the rights of divorced parents to see their children would have a significant bearing on a case of this kind in the future– a move that contrasts with proposals contained in the Family Justice Review  – but which I suggested should be done.

Although this is a fictional scenario, our children department at Stowe Family Law see cases with such difficult and complex issues each and every day. It can be easy to lose sight of how the children of the family are being affected when the parents have strong feelings against each other. It is our job to ensure that, whatever happens, the children’s best interests are at the forefront of everyone’s minds. It is vitally important to ensure that the children have proper parenting time with both parents. The advice of children lawyers must always bear this in mind and keep their client focused on this and not adult issues.

There was one answer that recognised this more than others: Carol Wright’s. Her response was family focused and accords very well with children legislation and the prevailing thinking about parenting. It also avoided the trap of allowing adult issues to impinge. Significantly, she spots that the situation is deteriorating fast and needs stabilising before there can be any improvement.

Carol considered that “the major issues will mean some serious compromise and good honest communication”. This is extremely important and in this situation we would seek to help the parties communicate for the sake of their children, despite how deeply they may feel they’ve been wronged. However, sometimes this can be the most difficult hurdle to overcome and therefore other third party professionals have to become involved such as therapists, mediators and counsellors. Ultimately, if the parents cannot make decisions for their children then a Court will, and its decision may not always be what either parent will want to hear.

It is indeed wrong to place children in a situation where either one of the parents is relying on the children emotionally, or even sometimes physically, if they do not realise they are doing it. This can cause emotional harm to the children and this must be avoided at all costs. The children need to rely upon their parents for support through a difficult and confusing time in their lives. They need to know that they are still going to have a secure home and upbringing. This is imperative when exercising parental responsibility.

There were hints within the scenario that perhaps the mother was trying to move away from the area to start a new life away from her estranged husband. This would be a valid reason if the circumstances of the marriage involved a fear of safety. In this scenario it could well be interpreted that the mother wants to move to punish the father. I believe Carol noted this when she said that: “The boys need to repair their relationship with their father or at least start to build bridges and ripping them away from all things familiar will not solve these issues”. Also, in order to help rebuild relationships between parents and children there has to be parenting time for both.

With regards to the new girlfriend, I agree with Carol that the father should not have introduced the children to her before the end of the marriage or at least until these confusing issues were resolved for the children. However, if Naomi does become a big part of the father’s life then the children will be introduced to her at some point in the future. But this has to be when the children are ready.

The children are going to be very upset about their parents separating and in order to do what is correct for them, the starting point has to be both parents taking time to provide reassurance. As Carol stated: “Above all the boys must be reassured that they are loved by both their parents, that the breakup is not their fault and things will be ok again.” Doing so will help them to deal with the separation and divorce in their own way.

Once again thank you to all who entered and Carol – we’ll be in touch to deliver your prize of chocolates and a bottle of champagne. 

Stephen Hopwood is a child law specialist and Head of the Children’s Department at Stowe Family Law. He has been involved in aspects of child law for over ten years and has particularly advanced the concept and practice of joint residence. He has also been involved with cases with complex foreign elements, and specialises in cases that have become “bogged down” or “written off”.

But London is different. There is no such thing as leisurely or friendly, or so it seems to me. The pace is fast, people race along the pavements, no one smiles and everyone looks positively grumpy.

It was raining yesterday when I set off for the first full day at our new office, so I hailed a cab. Coming up Chancery Lane we drove past a fellow family lawyer who had his head down and was striding towards his office. Dressed all in grey and looking thoroughly miserable, his mood seemed to match the day perfectly.

“What have I let myself in for?” I asked myself as we swept past.

I don’t think people are fully back at work yet. High Holborn wasn’t as jam packed as usual and arrived in good time and felt relieved to see a set of friendly faces. Partner Gavin Scott who has come down from Hale and Paul Read, my trusted lieutenant from Harrogate. They both inspire confidence and I’ve no doubt they will inspire others too. Then in breezed Andrew Williams, our firm’s chief executive, who was fresh off the train with one of our senior secretaries to induct the new admin staff. All their firm, confident voices were very reassuring and I started to relax, despite all the teething troubles everyone who has ever set up a new office knows only too well!

On my walk home yesterday evening I was struck by just how dark the London streets were; the outlines of those same fast moving commuters only illuminated by the yellow light of passing cars, shops and street lights. When I reached home I found my flat was also uninvitingly cold, dark and empty.

I love being in London, but always know that my real home lies waiting in Yorkshire – and that I can head home whenever I want. This is something that those in broken relationships can’t do: go home. They are often trapped with feelings of loneliness, isolation and anxiety and my heart goes out to them at one of the toughest times of the year.

People don’t like living empty, grey and lonely lives. They like to be happy, which generally means living as one half of a couple. They like the companionship and all that brings: conversation, colour, arguments and ups and downs. Even if another party is involved, a marriage break down can still be achingly, unbearably painful and lonely. And divorce doesn’t give anyone immunity from pain.

So why does Sir Paul Coleridge, who has spoken on the same theme for some time now, think it’s possible to set-up a brand new foundation to save broken marriages? Why does he keep saying it’s as straightforward as his catchy slogan: “mend it – don’t end it”? How can he really think his foundation will work when a couple may have decided it can’t, and that their lives have changed for ever?

Had Sir Paul not been a hugely successful QC at the family bar before going up to the bench, and had he not personally known all his clients inside out, I could have better understood the formation of his Marriage Foundation. He must have heard first-hand from his clients during conference, when they were talking to him and pouring out their heart’s emotions, feelings and pain, that it is not as easy as to simply say “mend it” rather than “end it”.

A broken relationship is not always even the result of a mutual decision. A relationship usually starts to break down years or months before it finally does. The couple starts to “uncouple” and if they don’t realise what’s happening to them, by the time they do it will be years too late. I’ve heard of countless couples who realise there is nothing left when their children leave home. One or both of them choose to end the marriage and move on to start a fresh chapter while it’s still possible.

Divorce lawyers know by the time they meet their client any chance of a successful reconciliation is almost impossible. It can happen, but in my experience it doesn’t often – and that is nothing to do with me! I don’t make those decisions and know that the loneliness of a broken relationship can never be underestimated.

I have also never yet met a divorcing parent who doesn’t agonise over their children, who doesn’t consider the pain being inflicted on the family, but who also believes that overall the decision is best for all of them. These decisions are never easily made, they are made because those involved genuinely believe, or have come to accept, that the relationship that once existed is now dead. Criticise them or not, understand them or not, these couples have a right to end a marriage in the same way they have a right to enter into it.

So if any good needs to be done for society then by all mean let’s encourage couples into marriage, something which Sir Paul says is the gold standard for a family. There I completely agree, but the number of couples marrying is substantially dropping, so there is obvious work to be done by his foundation and others.

But again I recognise that not everyone does want to marry.  I happen to agree there is more chance of a successful family if the parents are married, but to try and force couples to get married or force them to stay married is, to my mind, plainly wrong. To impose a different standard on them, to require them to ‘mend it-not end it’ is wrong.

I also wonder whether the Marriage Foundation will campaign for divorce reform, and if so, should a judge be involved? And while I respect Sir Paul’s decision to speak out and campaign, isn’t a “guilty” party going to feel concerned if he or she comes before him in court, knowing of his views?

Looking around, I noticed an Ebenezer Scrooge quotation in a shop window: “I will honour Christmas in my heart, and try to keep it all the year”. The phrase, from Charles Dickens’ A Christmas Carol, is a great one – but how often do any of us pay anything more than lip service to “the season of goodwill”? This year, as I shall explain, my firm decided to honour the Christmas spirit in quite a dramatic way.

BJ v MJ

In October 2011, Mr Justice Mostyn issued a judgment in the case of BJ v MJ (Financial Remedy OverseasTrusts) [2011] EWHC 2708 (Fam). These were financial remedy proceedings where the central question was how trusts should be treated in the division of assets following divorce. By way of introduction to the case, Mr Justice Mostyn took the opportunity to give his readers an easy to understand law lecture in the various types of trust commonly encountered in financial divorce cases. He distinguished between the trusts where a party has a fixed identifiable interest in trust property which can be valued and belongs to him; and where the trust in question purports not to give one spouse an absolute interest and therefore cannot immediately be regarded as that spouse’s property. This is known as a discretionary trust, because the party’s interest in the trust assets is only identifiable when it is paid to him by the Trustees, who in law are the owners of the trust assets.

1. Cipher Trusts

More accurately named, “Dear Me” trusts, these are supposed to be discretionary trusts – but in reality are a sham, since the trustees of the trust do whatever the settlor wants. In my experience it is often the husband who has set up a Cipher Trust, and he has unfettered access to the capital and income of the trusts indistinguishable to the assets in his direct ownership. In such cases, the court will ignore the trust structure, as it did in the case of Minwalla (2005) 1FLR 771.

2. Trusts of Land

These trusts are very common and the parties probably don’t realise that their ownership of a house has created a trust. They are simply homeowners or people who own properties in their own names, or jointly with the other parties or third parties, and their interests are therefore defined. Those interests can still be varied on divorce. So if the marital home is owned jointly or by one person alone, the court still has power to vary their ownership and transfer the property in such proportions as it deems fit.

3. Nuptial Settlements

Where there is a genuine trust, not a “Dear Me” trust, the court distinguishes very carefully between nuptial trusts and non-nuptial trusts, because under Section 24 (1) (c) Matrimonial Causes Act 1973, it has power to vary settlements which do have a nuptial element, even if there are other beneficiaries named in the trust who are not the divorcing parties.

For example, a trust may have been set up shortly before the marriage and a property may be placed into a trust by worried parents of the husband, who are trying to protect their offspring.
They don’t want to make an outright gift; instead they create the trust for the benefit of their child and also for future grandchildren, but carefully exclude the future wife.

They hope they have protected their child. They probably have not. With nuptial settlements, the court may hear from the trustees and any child beneficiaries must be represented. Yet the court has wide powers to vary the terms of the trust, including making outright provision for the applicant, even if the trust is offshore. However the court will most likely only make a variation of an overseas nuptial trust if satisfied the trustees will co-operate. If the court is also satisfied the order will be effective over the husband, it can also make the order.

Mr Justice Mostyn went into some detail in his mini-lecture about the issues the judges take into account when deciding to vary the terms of a nuptial trust. He reiterated that they “exercise caution before making a variation order” and quoted Mr Justice Munby (as he then was) in Ben Hashem  v Al Shayif (2009)1FLR115:

“The objective to be achieved is a result which as far as it is possible to make it, is one fair to both sides looking to the effect of the order considered as a whole. The settlement ought not to be interfered with further than is necessary to achieve…justice between the parties…the court ought to be very slow to deprive innocent third parties of their rights under the settlement.”

The decision to vary is fact-specific and discretionary.

4. Non-Nuptial Settlements.

This is a type of trust that has not been set up shortly before, or after, the marriage. Typically it will have been created many years beforehand by one of the parties’ parents or grandparents and payments will be made out of the trust to the beneficiaries on a discretionary basis. The trust will include a number of potential beneficiaries, such as children and grandchildren of the Settlor but may also include spouses of the parties, who are brought into the trust by virtue of the marriage. The trust may be onshore or offshore.

This type of trust poses more complex problems for the court. The assets are all locked away, and as the Judge confirmed, the Family Court is left with what has been described as “judicious encouragement” in the case of Thomas  v Thomas (1995) 2FLR668, followed thereafter by Mr Justice Mostyn’s own judgment in TL  v  ML (2006)1FLR 1263,  Charman v Charman (No 1 and No 4), and various others.

The court has to consider whether in dealing with the parties’ assets, some of which will be outside the trust, how much of the trust assets it can also take into account. Would it be fair in such circumstances to award the non-trust assets to the wife, on the basis the deficit will be made up out of trust assets then paid to the husband? Effectively, how far can the court go in unlocking trust assets, in genuine non-nuptial trusts where the settler may never have thought this would happen and it was never his intention?

So the first question for the court is: can all or part of the trust assets actually be attributed to the beneficiary spouse? The next question centres upon the likelihood that the trustee would be likely to advance the capital immediately or in the foreseeable future to the spouse. Should the husband ask the trustees to advance him capital, would they be likely to do so?

The court needs to look at the facts realistically. The court will not put “undue pressure” on trustees. What that means has never been defined. However it is not considered to be undue pressure if other beneficiaries would not be “appreciably damaged” and the court decides it would be reasonable for the husband to seek to persuade trustees to release more capital to enable him to make proper financial provision for the wife.

Note however that even if the court makes such an order, the trustees are not bound to comply – even though it is “plainly proper for the trustees to take it into account…and commonly it will be decisive”. Even if the trustees are not being co-operative, the judge is not bound by the trustees to accept, “what will or will not come the Husband’s way if an award leaves him with limited resources”.

So in such cases, the wife is awarded most or all of the free assets, the court being satisfied that the deficit caused to the husband, will be made up by the trust. In Charman for example, the wife received 87 per cent of the non-trust assets, (£48 million); SR v CR, 80 per cent (£6.25 million); and in appointment-what-you-need-to-know/”>FDR failed – as we knew in our hearts that it would – and the client was left facing a week-long hearing in the High Court.

So the choice was ours and ours alone – and it was far from easy. There was no legal aid and no bank funding for the client. The client had nothing with which to pay substantial legal fees – but surely, the client should not be left to fend as a litigant-in-person? Should the client go into court without legal representation and “have a go”… or would we act truly in the spirit of Charles Dickens and continue support them anyway, despite knowing there was likely nothing in it for us? We took a deep breath, and did just that.

The result: the client came away with a fairer settlement – and head held high.

My firm came away with nothing. Many law firms in this country, with the best will in the world, simply do not have the resources to be able do what we did. We helped our client to the best of our ability, putting the client’s interests first. I’m proud that I can read the words of Charles Dickens, and know that for my firm, those words do have a genuine meaning.

In other words: can you demonstrate a sufficiently strong connection to this country? It isn’t always easy and the answer isn’t always obvious.

Sometimes there is no connection to England at all. Sometimes there is. Sometimes there are connections to other countries, which appear to be as strong or stronger. But there is still the potential to establish jurisdiction.

Because we belong to the European Union, jurisdictional grounds are governed by European law. The relevant law is Art 3(1) of Brussels II revised, which is reproduced below:

1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

— the spouses are habitually resident, or

— the spouses were last habitually resident, insofar as one of them still resides there, or

— the respondent is habitually resident, or

— in the event of a joint application, either of the spouses is habitually resident, or

— the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

— the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses.

2. For the purpose of this Regulation, ‘domicile’ shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.

If you take a look at the new petition form for divorce or dissolution of a civil partnership, you will note that Part 3 (right) is named Jurisdiction – and to a non-lawyer, I’m afraid that much of the content does seem like gobbledygook.

Here you are being asked to demonstrate why the court has jurisdiction to deal with your divorce.

Your answers in Part 3 are often of critical importance, particularly from a financial perspective. I have discussed this at length in a number of previous international family law posts; as has Frank Arndt, the head of our International Family Law department, who is dual-qualified in this country and in Germany.

You will note that the excerpt from Art 3(1) of Brussels II revised includes a reference to domicile, which is a peculiarly English/Irish concept. I have written about domicile before, and will be posting an update next. So don’t worry about what that means until next time!

In this post, I am considering the meaning of habitual residence, within the context of a divorce or dissolution of a civil partnership and also residence within the same context.

V v V and habitual residence

So how do you demonstrate habitual residence, particularly if you live a cosmopolitan life style and flit between several countries?

A recent case called V v V (2011) EWHC 1190 provides a great example. It involved a couple with connections to a number of different countries. The wife wished to proceed with a divorce in England. She claimed jurisdiction because, she said, she had been habitually resident in England, residing here for at least a year before the petition was issued. Could she proceed?

This was a hard-fought case before the parties even got to court to argue about jurisdiction. They had been many times before. As the judge said “These parties have not hesitated to litigate about every conceivable issue”. By the time the jurisdiction issue was heard (the first consideration of the court, you might think), the overall costs amounted to £925,000! Mr V and Mrs V had already litigated about interim funding, the children, contents, occupation and non-molestation orders, freezing orders and interim financial orders. The judge remarked that all these costs had been incurred “without a basis for jurisdiction being established or a page being filed in relation to the ultimate financial orders that will be required”.

Quite a fiery case, wasn’t it?

The husband was a member of a Greek shipping family. He spent considerable time in Greece, Switzerland, the USA and England. The wife had been brought up in Brazil, but had also spent considerable time in Switzerland, the USA, England and France.  The couple lived in England for three years, then left to “reset the clock” of the husband’s non domiciled tax status.

After the birth of their two children, they travelled more generally in Europe and then returned to occupy their London home. They lived there for about a year, but in 2009 the husband, anxious to avoid UK tax liability in relation to a substantial business transaction, moved to Switzerland. The wife and children continued to be based in London. In December 2009, the wife began to spend about two-thirds of her time in Switzerland, and both children were based there. Arrangements were made to sell the London home, but the wife was actively seeking rental property instead. In March 2010 she applied for a UK residence permit, which was granted a few days later, and in that month the children returned to London. Mrs V issued her divorce petition in April 2010.

The husband argued that the English court did not have jurisdiction because his wife was not habitually resident between December 2009 and March 2010.

This period of three or four months between December 2009 and March 2010 was clearly critical for both parties. The facts were minutely dissected. So was the law in which the distinction between habitual residence and mere residence was made clear.

Habitual residence is a concept under European law. Its meaning, as per the accepted interpretation of Dr Alegria Borras, is as follows: “A person’s habitual residence is the place where the person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account”.

When considering a party’s “centre of interests”, the party’s intention also forms part of the court’s overall assessment – despite the argument of Tim Scott QC, who represented the husband in V v V, that “this introduces an undesirable element of uncertainty”. (Incidentally, a couple of weekends ago on that course in Bloomsbury, I discovered for myself that Tim Scott is a man of formidable brilliance. You can imagine my feelings about having to “represent” him in a role play against two lawyers on the other side, one also pretending to be the client…..!)

Z v Z and the test of intention

This test of intention, originally set out in the case of Z v Z (2009) EWHC 2626, enables a court to assess the mental element in concepts such as permanent, habitual, residence and home.

In Z v Z, Mr Justice Ryder held that the emphasis for establishing a place of habitual residence was to focus upon the centre of a family’s interests. He found that a “centre of interest” may be established quickly or slowly depending on the circumstances, and that it might not be lost in one country despite a lengthy period spent in another.

In that case, a French husband divided his time between the family home in Paris and his workplace in London. The family then relocated to London, where the children attended school. They kept a house in Paris, but within a month of relocating to London, the couple entered a trial separation. This led to divorce. The wife immediately petitioned in England and, a few weeks later, the husband issued divorce proceedings in France. The French court stayed (suspended) its process. Although the husband then found that his employers required him to return to France, the wife successfully argued that at the time she presented her petition, both husband and wife were habitually resident in England.

Mr Justice Ryder found that at the time of the family’s move to England, the couple intended to change their centre of interests and, even though the husband’s intention had since changed, he had not communicated this to his wife.

Back to V v V where, applying the objective test in Z v Z to the facts, the judge in V v V found that the wife had demonstrated the requisite intention to habitually base herself in England. It was indeed the centre of her interests. The judge conceded that in some cases, moving to another country could well amount to a change of residence.

The court will take into account the links the parties have maintained, as a family and individually, with the country of origin. It will consider where the children were educated, whether or not the children have become fully involved in their new community, and if they speak the language. The court will also consider whether the parties pay local taxes and have transferred assets to the new country.

But in V v V, even though the wife had moved and spent most of her time in Switzerland, during the period in question, she had not stopped residing in England.

The judge then turned to the distinction between habitual residence and residence. This was because Art 3 (1) requires the Petitioner to have been habitually resident at the date of presentation of the petition and to have been resident (not necessarily habitually resident) for one year prior to the issue of the petition.

There is a distinction between the two concepts, and the definition changes in different areas of the law. In children law for example, a distinction is made between habitual residence and mere temporary presence.

In V v V, Tim Scott argued that it is not possible to be resident in more than one country simultaneously – and on the face of it, he has a point. However the judge disagreed, noting: “I have no difficulty with the concept of a person being resident in more than one place at a time…a family with more than one main home, the person who spends extended periods away at an established place of work”.

He added: “Since simple residence is not a basis for jurisdiction, simultaneous residence in more than one member state cannot lead to jurisdictional conflict”.

Marinos v Marinos and the quality of residence

There is thus a clear distinction to be drawn by reference to the quality of residence, and it follows a decision in the case of Marinos v Marinos (2007) EWHC 2047. This was another case involving a Greek husband and an English wife. The wife was an air stewardess who maintained a residence with her parents in England. She became habitually resident when she undertook a planned relocation to England, issued her divorce petition the following day and thus could present her petition.

In both V v V and Marinos v Marinos, the court found that it is possible to be habitually resident in one country and resident in another. It is also possible to be resident in more than one country. Wealthy people will often maintain different homes around the globe and be resident in them. But it is not possible to be habitually resident in more than one country.

Confused? I’m trying my best to keep it simple!

If you are thinking of proceeding in England, then you must give jurisdiction some close scrutiny and thought. Do take legal advice about how these complicated rules might apply to you.

But here’s a final word of warning… Please don’t follow the example set by Mr V and Mrs V, who spent almost £1 millon on other issues before the main case even began. If you do, you may litigate away in costs the financial advantage you were trying to secure in the first place.

This is a slightly expanded version of my latest post for The Times, which appears on The Experts blog today.

It has now been more than a year since the landmark Court of Appeal judgment in the case of Imerman v Tchenguiz. The decision, condemned by family lawyers at the time, has meant that litigants are no longer permitted to seize papers and documents left lying around, if it is deemed that such actions could breach a party’s “rights of confidence”.

Last weekend I was on a course in Bloomsbury with 22 family lawyers. Their number included a retired High Court judge, QCs, barristers and solicitors from various parts of the country. It struck me as a golden opportunity to find out more about the impact of the Imerman decision upon the profession, and its overall effect on family law.

On my own blog and elsewhere, I have made my feelings about it very clear. I regard it as by far and away the worst decision that I have ever come across in relation to ancillary relief. For the unwary, the Imerman judgment poses a major minefield when advising clients. Innocent “self help” by one party, to ascertain the true financial picture of the other, was previously accepted as it gave the court a clearer picture of both parties’ finances. Now it has been outlawed. In my experience, this has significantly altered the balance of fairness between parties, and made life very tough indeed for clients who are married to duplicitous and secretive spouses.

One problem is that we know far more from the judgment about what clients and their lawyers mustn’t do, than what they can do. It has long been common for new clients to turn up with bags of documents, some of which do not belong to them but to their spouse. We now know – often before they do – that a  “snooping” client can easily fall foul of the law and can face serious consequences in both civil and criminal law. By the time we are asked to advise, however, it is often too late. The “snooping” has already taken place. The client has seen. The client knows. So if you are a solicitor, what do you do to ensure that justice is done, with full disclosure made by the other side – while protecting yourself and the client at the same time?

In Bloomsbury at the weekend, I was interested to find out if the other family practitioners shared my alarm and concerns. What have their experiences been? What Imerman-related issues are they encountering? During the breaks, I dived in. It was an informal straw poll, but it did turn up some startling results.

The various Queen’s Counsel to whom I spoke commented as follows:

“Imerman? It’s all a bit of a damp squib, isn’t it?”

“Can’t see what all the fuss is about.”

“Nothing much has happened, has it?”

And this:

“I heard that it is going to the Supreme Court. I suppose we will learn more then?”

(Actually, I am not sure that it is. At the time of writing, it is not included on the Supreme Court’s  list of appeal hearings for the forthcoming Michaelmas Term.)

It would appear that, as far as QCs are concerned, there are no known cases with Imerman points to be resolved. No dramas, no fuss. As cases come and go, it’s all turned out to be a storm in a teacup.

Or so you might think. The solicitors to whom I spoke shared some very different experiences.

“Nightmare”, was one reaction.

“I always refuse to look at the other side’s documents if my client tries to hand them to me, and I tell her to put them back where they came from.”

“I tell her that she can write down what she remembers of what she has seen – and she thinks I’m bonkers!”

“I act cautiously, to protect myself.”

“I tend to argue that the documents were available jointly to them, and that she was free to use them.”

“If my client gives me Imerman documents I don’t look at them, but I do put them in an envelope and write to the other side for an undertaking the solicitors will hold them intact and will give full disclosure of them in the proceedings. I will then send them to the other side on receipt of their personal undertaking.”

Is the client still at risk of sanction? Apparently so:

“I came across a case recently in which both the wife and her solicitors must have seen the documents. I’m going to pursue it against them both straight away, if only because it puts her under pressure to settle…”

My conclusion? If this very small sample is representative of the profession as a whole, then amongst solicitors there is a wide range of opinions as to what to do. The solicitors are the ones who are clearly making the decisions at the beginning of the case, and each solicitor is using his or her own judgement about the correct procedure. Some are continuing to look at documentation; others are not. Self-protection is playing a key part, as is the desire to put pressure on the other side. Overall, it would seem that the “Imerman issue” is being ironed out as early as possible, before the case is heard.

What is lacking, however, is a uniform procedure. Instead, solicitors are groping their way forward in the dark. A code of conduct as to what constitutes good practice, and what does not, appears to be required. But such a code would be difficult to draft.

To my mind, it is not a good sign that there are no Imerman-related issues to trouble the Silks, if and when cases get that far. It does not mean that the Imerman decision is a “damp squib”. Instead, it indicates that from the moment a client walks into a solicitor’s office, the solicitor is concerned about the impact of adverse findings, including the threat of being removed from the case. In the main, solicitors seem to be acting cautiously and properly, as they are required to do. But is that at the expense of overall fairness?

I wonder how many dishonest litigants have rubbed their hands with glee over the past year?  Full and frank disclosure has not been made, but they have known that the spouse and the spouse’s solicitors can do little about it. For such a litigant, a potentially uncomfortable journey can become a walk in the park.

Are the courts making the right orders? Or are cases being sanitised so ruthlessly and effectively that, with the exception of one party, no-one (including the judge) ever knows the truth?

Grant Thornton doesn’t publish the number of UK firms which take part, nor their locations, but has canvassed the opinions of 101 family lawyers based on their client work in 2010. This year, for the first time, I chose not to take part. I’ll admit that I was more interested to find out if our family law colleagues’ experiences concurred with the conclusions of Stowe Family Law’s recent in-house survey.

As the UK’s largest specialist family law practice, our firm acts for clients not just in London but around the country, providing its own snapshot of the “divorce arena”. Over the past 18 months, in the wake of the recession, we have noticed some striking new trends. As it turns out, they are spot on with the Matrimonial Survey findings.

Lawyers who participated in the survey were asked for the average value of total family assets distributed between divorcing parties. The results indicate that the number of high net worth divorce cases, involving couples with assets of between £4 million and £10 million, has dropped sharply. I imagine that many such couples have seen their asset values reduce dramatically, and that many were badly hit in the recession. When the going got tough… We have found that at present, wives in this wealthy bracket are more inclined to “sit it out”. As one said to me: “How can I manage on only £3 million instead of £10 million?” She could be in for a long wait.

At the same time, couples in other asset brackets continue to divorce in numbers.  Of the family lawyers surveyed, 70 per cent put divorcing couples’ average family assets at between £250,000 and £2 million – exactly the same figure as last year. Perhaps this isn’t so surprising: the “squeezed middle classes” so beloved of certain newspapers really do exist. Economic circumstances have hit this group hard and if something has to give, it will often be the marriage.

For me, the most interesting results of all are the most common reasons given for marital breakdown. The extra-marital affair has topped the list every year since 2003. This year, however, just 25 per cent of respondents cited the extra-marital affair: the lowest level since the survey commenced. It has also been supplanted in the rankings, with 27 per cent of family lawyers opting for “growing apart / falling out of love”. This is quite a jump: in 2009, “growing apart / falling out of love” was selected by just six per cent of respondents.

These findings suggest that in the current climate, the extra-marital affair is a luxury too far – and I would agree. There is too much to do in rebuilding our shattered economy for wasting time elsewhere. Instead couples who are working hard to hold their heads above water, who grow apart are simply acknowledging their circumstances, rather than trying to play a blame game. Ask them if there is a chance of saving the marriage, and the answer comes back no. The decision has been made over a lengthy period, my clients tell me, and it is irreversible.

Over the past 18 months I have heard client after client comment either that their partner was playing no part in the commercial struggle, or had little comprehension of what it was like to go to sleep at night with the bank to face next day, or complain that their partner was too wrapped up in work and had neglected the family. These are couples who, exhausted by endeavours and feeling isolated and unsupported by one another, accept they are traveling in different directions and decide to part.

As for next year’s Matrimonial Survey results: much is likely to turn upon economic events, and for this reason I am reluctant to make any predictions, but I wonder if current trends will persist.  Will there be any relief for the squeezed middle classes? Will those high-net-worth wives tire of the waiting game? Time will tell.

Sir Nicholas Wall said:

“Allegations of sexual abuse were first made by the mother and not by X [the child]… X was coached by the mother to make allegations of sexual abuse against the father.”

He explained his decision to sit in open court as follows:

“The father is entitled to tell the world, and the world is entitled to know, that he is not a paedophile, that he has not sexually abused his daughter and that the allegations made against him are false.”

Now the father has been publicly exonerated in national news reports. The damage done to him has been corrected, although I expect that there will always be some people who believe him guilty. That is the way of the world. The child now lives with him, and Vicky Haigh may make no applications to the court about the child for two years. She is living in Ireland, having given birth to a second child there to evade concerned social workers.

Vicky Haigh’s sexual abuse allegations were examined and rejected by two judges at previous High Court hearings, which took place in private. However the allegations were also repeated elsewhere. Yesterday Sir Nicholas Wall sentenced Elizabeth Watson, a private investigator engaged by Vicky Haigh, to nine months’ imprisonment for contempt of court.

Sir Nicholas Wall said that Vicky Haigh had been “wholly unable to accept the court’s verdict and, with the misguided assistance of Elizabeth Watson has unlawfully and in breach of court orders put into the public domain via e-mail and the internet a series of unwarranted and scandalous allegations about the father and others”.

The Court could not have come out more strongly against Vicky Haigh and her supporters. There will still be those who side with her. As for me: based on what I have read in the newspapers today, I find this to be one of the most repugnant cases I have ever come across.

I am sorry to say that it is not the only case of women behaving badly that I have encountered. Over the years I have, on occasion, come across other women who are prepared to stoop this low. There is, perhaps, a taboo about discussing women who behave badly. But during a family breakdown both sexes can behave towards each other with conduct so bad, it beggars belief. So in this post, which I understand is likely to prove contentious, let’s look at how women can behave. Fortunately such cases, in common with those of men who stoop similarly low, are rare.

Sometimes, I have found myself acting for a less sinister version of the mother whose conduct was laid bare in the High Court yesterday. At our first meeting she will tell me, in graphic detail, about her suffering at the hands of her monster of a husband. She and the children are at his mercy. She will be intelligent and persuasive. However as the case goes on, and the excuses for not settling come thicker and faster, it becomes apparent that far from being the victim, she is in fact in complete and utter control of the family’s situation. For example, she will do all she can to ensure that the father never sees his children at all. She will make arrangements for all their free time. She will have ready excuses for why he can’t have the children for contact when he comes to collect them. She will always blame him for this state of affairs, ultimately because of what he has done to her. It will never, ever be her responsibility. Perhaps she makes him jump through hoops of fire because he has left her, and this is “payback time”. Perhaps she feels that she hasn’t had enough money from him, so he must pay.

In such cases, there is little doubt that once I twig what is really going on, and the extent of her determination to stop him seeing his children becomes clear, she will likely part company with our firm. We cannot continue to act for a client who is playing out a charade for revenge, who lacks insight, and who has no comprehension or concern of what she is denying her own children: the right to a relationship with their father.

Such people portray themselves as victims, their partners as predators when nothing could be further from the truth. The perceived wrongdoings in a relationship should have as little impact upon the children as possible, but every effort we may make to resolve the situation falls on stony ground. This particular client has no intention of settling with the father, none at all. The intention is to completely alienate the children from the other parent.

(Don’t overlook the fact that even if we don’t see eye to eye with a client, another firm of lawyers will. An individual will have his or her own version of what is happening, and everybody has the right to have a case heard by the court – which is as it should be.)

I have also acted in two cases of a type rarer still, for innocent fathers who never faltered in their accounts of what had happened. In one case, the mother made an allegation of paedophilia -whereas it was the mother herself who was the paedophile. She had lost control of herself and, emboldened by all the steps the court and social services were taking to protect the children from the father – removing him from his home and allowing him the strictest possible supervised contact – she sexually assaulted one baby on a day when the father could conclusively prove that he’d had no contact with the child. The children were ultimately removed from the mother by social services, and placed with their father.

In another case, the father had to move out of his home following allegations of violence, which he disputed. There followed an arduous battle for contact with his children. Ultimately the father was successful, but the struggle wore him to a frazzle. It was a lengthy case, and our firm ended up doing the last part of it pro bono. The mother made all the nastiest allegations that she could, did all she could to avoid giving him any contact, then permitted only the most limited contact. She almost got away with it, hoping he would give up – but with our support, he did not.

There are, I am very sorry to say, those who are so driven by a desire to punish their former partners that they will do anything to hit back. Anything at all.

The problem is that it is much easier to believe these types of allegations, because in certain cases, they are true. There are fathers who do abuse their children. And because the allegations can be true, we think they must be true. We desperately want to protect the innocent children who are at risk.

And these accusers know it. So do the courts and social services, who need no reminding of obligations that can make front-page news. They have to make decisions in cases where the “facts” may not exist at all or can be swept away, if examined with greater care. But how many courts and local authorities have all the resources to do this? They struggle to do their best. And they are not helped by these types of cases.

Such cases remind me of the circumstances I came across when I became involved with Sally Clark’s case. Sally Clark finally walked free from court on her second appeal against convictions for murder of her two babies, three years after her original conviction. Because two babies died in her care, it was argued, they must have been murdered. And she must have done it. The jury and even the Court of Appeal agreed. Only after the most careful digging, to unearth what had really happened, did the truth come out.

And that’s the problem. When serious allegations are made against an innocent man, the tendency is to believe that “there is no smoke without fire”. His back is up against the wall. He can have the entire system ranged against him, as two of my clients did.

Thankfully in the Vicky Haigh case (and in my clients’ cases too), justice has ultimately been done. A wicked vendetta and a misguided campaign have been caught and stopped.

The price that may ultimately be paid, if social services and the courts relax their vigilance and get it wrong, is by a child or another parent. And how easy it is, to get it wrong.

UPDATE 05/09/2011: The judgments have been published in relation to Ms Haigh and Ms Watson. After applying to purge her contempt, Ms Watson has now been released from prison. Instead, a  two-year suspended sentence has been imposed by the court.

Doncaster Metropolitan Borough Council v Watson [2011] EWHC B15 (Fam) (22 August 2011)

and

Doncaster Metropolitan Borough Council v Haigh [2011] EWHC B16 (Fam) (29 August 2011)

Image credit: Toulouse-Lautrec.