Marilyn Stowe Blog » Family Law

Q&A on finances and divorce with Marilyn Stowe – Wednesday February 8th

Marilyn Stowe — Wed, 01 Feb 2012 16:23:52 +0000

I often receive and welcome comments on this blog from readers looking for advice concerning their own situation. I always try to reply but it can become difficult to offer specific advice when I don’t have a fuller picture of their circumstances.

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.

A Merry Christmas and a Peaceful New Year

Marilyn Stowe — Thu, 22 Dec 2011 15:15:59 +0000

With our new London office opening on January 3^rd, the last few months have been manically busy and involved a large amount of travelling away from home. The few days’ breathing room over the next week will be a true blessing. I am going to wrap up warm and look forward to the greatest gift I know – quality time with my family.

I am very grateful to you all for following my blog, and I would like to wish you all a very happy and peaceful Christmas. In the words of Jose Feliciano, “I want to wish you a Merry Christmas from the bottom of my heart”. I have always loved his song ‘Feliz Navidad’. The simplicity of its lyrics and jubilant melody remind me of all the best elements of the season, whatever your faith: the simple joy and happiness of spending time with people we love.

I recently discovered this version of The Three Tenors singing it; a wonderful rendition. To all my readers, thank you once again and ‘Feliz Navidad, Prospero Año y Felicidad’.

P.S. We’ve received so many imaginative and thoughtful Christmas cards at the Stowe Family Law offices over the past few weeks. But one in particular caught my eye. This playful Christmas email was sent by Sir Peter Singer and features a picture taken during a recent trip to Poland. He has kindly allowed me to post the image – which he described as a “reflective moment”!

Family law arbitration: a new dawn for ADR?

Marilyn Stowe — Wed, 30 Nov 2011 19:10:59 +0000

Lord Wilson delivered a frank, easy to understand speech last night in London. It was noteworthy because he is the first senior figure in family law to publicly announce the imminent arrival of a new form of financial dispute resolution in family law: arbitration.

Arbitration is well-known and well-used to resolve commercial disputes, but so far it has not been applied to family law (Family Law Week provides some further detail here on how it will work from February 2012).

When applied commercially a suitably qualified arbitrator is nominated by both parties to decide the dispute. The arbitration process is then conducted by the arbitrator, who decides how it is to proceed and ultimately makes a decision that is legally binding on the parties. As Lord Wilson stated yesterday: “In principle…arbitration would be likely to avoid or lessen a number of disadvantages attendant upon proceeding to court, in particular delay and publicity.”

Earlier in his speech he had outlined the reasons why private family law disputes need to go to court at all. He gave five particular reasons: lack of legal advice; wrong legal advice; lack of clarity in the law; a refusal by one party to deal honestly with the other; and emotional reactions which prevent earlier settlement.

He then went on to succinctly outline the five main disadvantages of proceeding to court. He considered these to be: the cost; the delay; the publicity; the uncertainty; and the emotional burden on the parties as they go through the process.

The only out of court opportunities (known to lawyers as Alternative Dispute Resolution, or ADR) currently available to family lawyers are mainly limited to mediation and the collaborative law process, which most family lawyers know has a high failure rate from the beginning. Lord Wilson commended both methods, but in particular mediation, going as far as to say he had toyed with becoming a mediator had he simply retired from the Court of Appeal instead of going up to join the Supreme Court.

However, I think the fascination with both forms of ADR now mostly rests with the professionals who conduct it. ADR has singularly failed to capture the imagination of the public, because there are so many perceived disadvantages which simply cannot be surmounted, no matter how hard one may try or attempt to gloss them over.

I was one of the first ever trained family law mediators in 1995. At that time there were great hopes for mediation that ultimately foundered. My firm last year took on board the Government’s enthusiasm for ADR and decided to give it another go. At considerable expense we trained and set up a separate ADR unit, leaving no doubt that our firm is fully committed to ADR – as are most family lawyers. As a result we now have a number of highly trained mediators and collaborative lawyers within our practice.

The undeniable fact however, is that many of those who choose to instruct our firm do not, at present, have a preference for ADR. They are seeking a litigator in their lawyer and certainty of outcome – and there is no way that these wants can or should be glossed over. Yes by all means we can attempt to settle, but let’s not forget that the public are saying loud and clear that what they actually want is the resolution of their dispute as cheaply and quickly as possible. And ultimately they want legal help to get that resolution if they can’t reach a settlement between themselves.

Their rejection of all the flaws of ADR is not the “fault” of the lawyers. It is more a case of clients opting for what they want and understand.

The principal disadvantages of mediation are that it is manifestly unsuitable in instances: where one party is stronger than the other (e.g. where one party may be threatening and the other party is in fear, or one party is perceived to be stronger in terms of negotiating ability) and so the “full, frank and honest” disclosure required of a court process is not forthcoming; when it can delay resolution of a dispute because there is no requirement to achieve an outcome and one party may simply decide to string the other along and “outgun” them financially.

Furthermore, a failed mediation adds to the overall cost and there is never any certainty of outcome. Even when the couple have reached an agreement it may then be unwound because the truth of one party’s real financial position emerges, or they might have reached an agreement without fully appreciating their position in law – and then having consulted solicitors may change their mind before it is made into a court order. In short, it is far from being a perfect out of court system.

In a “collaborative” process, where lawyers do their best to assist the clients to reach agreement or withdraw from the case, few couples actually understand it and/or are even prepared to give it a try. They again want their lawyer with them for the journey. Otherwise why take care to choose the right lawyer in the first place if they are likely to be lost to the process?

I know of no family lawyer who regards alternative dispute resolution methods as widely successful or even vaguely popular among divorcing couples.

The Government’s enthusiasm for mediation should, I suggest, be taken with a pinch of salt. The removal of legal aid for most people in private family disputes means the Government are bound to push the benefits of alternative processes. In doing so they have ignored all the pitfalls that professionals in the field know of, and that have tempered their own enthusiasm for ADR. And all the enthusiasm in the world can’t make an inherently defective scheme work in great numbers.

Lord Justice Wall, the President of the Family Division, gave a speech of his own last night, which touched upon this subject. He told the Bar Council’s law reform committee that although he was a supporter of ADR, the public funding of mediation would not resolve the problems of the “myriad of unrepresented litigants who will come before the family courts”. He said that a new family justice service, as recommended in the recent Family Justice Review, would be neither practical nor necessary. In many ways his comments showed just how much the current system is creaking and in real need of fresh thinking.

So what of family law arbitration? There is little in the way of literature just yet, but in principle family law arbitration would certainly seem to have all the advantages that other ADR methods lack, and therefore appears to be a highly attractive proposition. To understand how it could work it is worth looking at what currently happens in commercial cases.

Commercial arbitration is to my knowledge swift, private and in many cases considerably cheaper than incurring two sets of legal costs during a protracted court process. Commercial arbitrators impose their own timetable which can short circuit the issues in dispute. Parties to a commercial dispute can have as much or as little legal representation as they choose and hearings take place in more informal settings than a courtroom and are therefore less emotionally burdensome. A major attraction of any commercial arbitration process is that it does have teeth and a legally binding certainty of outcome. The arbitrators who deal with these disputes are also experts in their own particular field. A specific arbitrator can be appointed by agreement between the parties or nominated by the Chartered Institute of Arbitrators. It is therefore in their own interests to have prepared beforehand, which is at odds with many cases held in the courtroom before judges, who are often too pressured to give each case similar standards of care.

Towards the end of his speech Lord Wilson said: “I am glad to learn that rigorous training effected in conjunction with the Institute of Arbitrators is a pre-requisite of a member’s accreditation as an arbitrator”. No doubt we will all learn more about family law arbitration in the coming months as the scheme is rolled out. And given the success of commercial arbitration I would have thought this method of ADR bears all the hallmarks of a potentially highly successful method for resolving financial disputes in divorce.

Kernott v Jones in the Supreme Court: what you need to know

Marilyn Stowe — Tue, 08 Nov 2011 19:07:01 +0000

The long-awaited judgment in the case of Kernott v Jones is to be handed down by the Supreme Court tomorrow. In the case itself, not a lot of money was ever involved. However the legal principles have taxed some of the most brilliant legal brains in the country. I am going to try and simplify it as best I can, so that you will be ready for what is going to happen!

Kernott v Jones is a case arising from a family break-up, but because the parents cohabited and never married, it is being dealt with in the Chancery Court where “touchy feely family law” and “reasonable needs” have no place. (That is one reason why I continue to argue for specific legislation for cohabiting couples. It would avoid any more cases such as Kernott v Jones. Instead, such cases would be returned to the Family Division, where they properly belong.)

The facts of the case are as follows:

Mr Kernott and Ms Jones began living together in 1983 and had two children.
In 1985 they jointly bought a home together for £30,000. Ms Jones paid the £6,000 deposit, and the rest was obtained with a mortgage. At that stage she should have protected herself by having a declaration of trust drawn up, and perhaps
that would have avoided the subsequent legal battle, but it didn’t happen.
Mr Kernott paid for a property extension, which increased the value of the property by £10,000. The couple added a further £2,000 to the mortgage.
Mr Kernott and Ms Jones split up in 1993. At that point both parties beneficially owned the property in equal shares. They
also shared the proceeds of an endowment policy equally.
Fourteen years passed. Mr Kernott bought another home
for himself. Ms Jones, who remained living in the original property, paid all of the outgoings on the property. She also raised the
couple’s two children without any contribution from Mr Jones.
In 2007, Mr Kernott sought to obtain his 50 per cent share of the original property.

The questions for the court: has Mr Kernott and Ms Jones’ beneficial interest in the property altered since their separation – and if so, when did this happen and how?

In two lower courts, Ms Jones’ share of the property was adjusted to 90 per cent. Mr Kernott’s share was reduced to 10 per cent, in line with the House of Lords decision in the case of Stack v Dowden.

In Stack v Dowden, a home was owned jointly by an unmarried couple but their beneficial interests in the property were not stated in the conveyance when the property was purchased. The House of Lords had to decide whether or not the parties’ interests were 50:50. In that case the interests were held to be 65:35.

Lady Hale – now a Supreme Court justice, of course – was generally agreed to have given the leading judgment with which all the other judges concurred. She referred to the common intention to vary their beneficial ownership.

But if there is nothing in writing, how does such a variation come to be? The answer: it is to be inferred…

Kernott v Jones in the Court of Appeal

However the Court of Appeal, took a more conservative view, criticised Stack v Dowden and with reference to a judgment of their own called Oxley v Hiscock, held there was no evidence of any common intention to alter the 50:50 ownership of the property in the case of Kernott v Jones.

All that was left to do was an exercise called equitable accounting, to offset relevant payments by Ms Jones to relevant entitlements of Mr Kernott, such as rent, for the occupation of “his” property.

It was at this point that Ms Jones appealed to the Supreme Court.

Kernott v Jones in the Supreme Court

Firstly, it is worth noting that when Kernott v Jones was heard by the Court of Appeal, the leading judgment was trenchantly handed down by Sir Nicholas Wall, who is now the President of the Family Division. For this reason, the Supreme Court may also follow the conservative line that there was no “common intention” to alter beneficial ownership from anything
other than 50:50.

However it is also worth noting that the Court of Appeal’s decision in Kernott v Jones was not unanimous. So let’s take a look at the dissenting judgment of the Court of Appeal’s Lord Justice Jacob, who argued against the majority view, and consider what the Supreme Court may make of his opinion.

In the case of Kernott v Jones, the law was stated and applied by Lord Justice Jacob in the following steps, quoting Lady Hale in the case of Stack v Dowden (my explanatory notes below):

(1) Whether property is held legally by one party or the other or is held jointly, the presumption is that the beneficial interest corresponds to the legal interest.

- This means that the parties own the property equally.

(2) In particular: “In the domestic consumer context a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved”

- So remember: if you are cohabiting, you buy a property jointly with your partner and you don’t want the presumption of 50:50 to apply, you MUST do something about it at the time of purchase. Get your solicitor to prepare a simple Declaration of Trust, which will mean you won’t end up in this type of litigation nightmare.

(3) The burden lies “on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests and in what way”

- If you want to argue that there was an intention to alter the 50:50 split, then it is up to you to prove it.

(4) Moreover the onus is heavy. ”At the end of the day, having taken all this (including the host of factors mentioned by Lady Hale in cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual

- And it won’t be easy!

(5) The legal test can be stated shortly: “The search is to ascertain the parties’ shared intentions, actual, inferred or imputed, with respect to the property in the light of their whole course of conduct in relation to it”

- The court will look at everything that happened to decide if how and why it altered.

(6) The exercise of finding whether there were shared intentions and if so what they were is not easy. It involves a multifactorial examination of the circumstances.

- This is what the court will do.

Lord Justice Jacob went on to quote a lengthy excerpt from Lady Hale’s leading judgment in Stack v Dowden, which I have copied here in full for reasons that will become clear:

In law, “context is everything” and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.

But here’s the crux…

Lord Justice Jacob also pointed out that intentions can change over the years.

This possibility was also acknowledged by Lady Hale in Stack v Dowden, when she stated:

There may also be reason to conclude that, whatever the parties’ intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then.

Therefore when Kernott v Jones was heard in the Court of Appeal, Lord Justice Jacob found that the county court judge who had previously ruled on the case had not made an error in law.

The county court judge had stated:

Having established that principle I have to consider what is fair and just between the parties bearing in mind what I have found with regard to the whole course of dealing between them

Lord Justice Jacob commented (emphasis mine):

If this were a free-standing passage it might be arguable that the Judge was applying the wrong test – one of just deciding what was “fair and just”. Such an approach would be inconsistent with the “parties shared intentions” test of Lady Hale and, incidentally also inconsistent with a resulting trust analysis. But the passage is not free-standing. It follows repeated references to Stack and the need to discern the parties’ intentions. So I do not think the Judge was at this point simply abandoning Stack. What he is saying in context is that the parties’ shared intentions must be taken to be (they can be “inferred or imputed”) is that they should each have a fair and just share. That is what the Deputy Judge also thought.
Accordingly I conclude that the Judge made no error of law.

Therefore it was on the facts, and in accordance with the law, that Lord Justice Jacob found the original judge was “rightly and in accordance with Stack, still focussing on the parties’ intentions. He is saying they have changed over the years. That is just what Lady Hale contemplates as a possibility [in Stack v Dowden].”

Lord Justice Jacob concluded (again, emphasis mine):

If one asks oneself how did these matters come to be, it is not impossible to conclude that they did so by a shared intention that the parties’ interests in the house were to vary over time, rather than that his interest as a proportion of the value of the house should remain fixed and immutable. It is possible to infer or impute such a shared intention. And the Judge, having seen and heard the parties was in a better position to decide the matter – and particularly the intentions of the parties – than we are.

Accordingly I would not interfere with Judge’s conclusion. It is not necessary or correct for this court to consider the matter afresh. I would dismiss this appeal.

So what can we conclude about Kernott v Jones?

In law, can Mr Kernott and Ms Jones have started out intending to own the property 50:50 legally and beneficially, but intended their beneficial ownership to change following their separation? And if so, how?

I will leave you to make up your own mind, while pointing out that in the absence of an express Declaration of Trust, four courts have gone through the tortuous process of analysing in detail what actually happened between the two parties with regard to the ownership of their house. The answer is not cut and dried, but I hope that I have provided some food for thought.

To date two courts – the county court and the high court – have found for Ms Jones, notwithstanding the fact that nothing was in writing. One court, the Court of Appeal, has found for Mr Kernott. All three courts purported to apply the same law to the same facts.

And now for the fourth court, the most important court of them all. What will the Supreme Court decide? We cannot know, but it is to be hoped that the judgment will clarify the law, and apply it to the facts.

When you read all about it tomorrow, I hope this background proves useful. Perhaps the Supreme Court will concur with the Court of Appeal, in which case the decision will be described as all too predictable. But don’t be taken aback if there are surprises in store…

Reebok, Cartier and the Bolton Law Society Family Law Conference

Marilyn Stowe — Wed, 21 Sep 2011 14:53:10 +0000

Another week, another football stadium! This time, it’s not Wembley but the Reebok Stadium: the home of Bolton Wanderers football team. It is also the venue for the Bolton Law Society Family Law Conference, which I chaired yesterday.

With so much happening within family law right now, I have already found – as I did at the University of Staffordshire Law School earlier this year – that being an audience member at one of these conferences can be a mind-bending exercise. This time, I knew I had some work to do. The varied programme covered a range of subjects relevant to family lawyers. It was a fascinating day, and I was kept on my toes introducing each speaker and moderating sparky debates.

The speaker who made the deepest impression upon me was Joe Egan, a solicitor from Bolton who helped to organise the conference. Joe is the secretary of the Bolton Law Society, and a Law Society council member. He spoke about the future of law firms and the possibility of people without legal qualifications owning firms and making inroads into the legal market. Tesco Law, as it is known, has come about as a result of the Legal Services Act 2007, which is due to come into force in a few months’ time.

Joe has seen a lot during his lengthy and varied career, and has clearly remained true to his roots and beliefs. He said that he went into this profession as a vocation, was unimpressed by the “slicksters” who were after making fast money – and watched as they came and went. What worries him now are the future “Specsavers” of the legal profession: giants of the high street who may try and gobble up the market, against whom small firms will be unable to compete. He alluded to an article I wrote recently for Solicitors Journal, in which I too expressed fears for high street firms.

Looking to Australia, Joe gave us two examples: one law firm that has successfully floated on the stock market there, and another that has not. He examined what I would call the Big Is Beautiful route, and how law firms and venture capitalists could draw upon it to grow a high street brand, cutting out competition. Fixed prices could make such brands particularly attractive to the public. To grow such a brand, however, requires a lot of money and resources that are in finite supply at most high street firms.

But hold on! We don’t just sit back, admit defeat and watch high street firms up and down the country crumble, do we? So I said: “Specsavers doesn’t sell Cartier, Joe”.

What I meant was this. Yes, there is a place for Specsavers. They supply the mass market and lots of people buy from them. But when I need some specs, they aren’t for me. They don’t offer my favourite lines and they aren’t for everyone. I get my glasses from my own optician. I have known him for years, I like him and he has a shop on the very same high street as Specsavers in Harrogate. I stick with him because in my opinion, he is the best at what he does. His service offering and customer service is unmatchable.

At the toughest times of their lives, going through divorce, I believe that most clients are the same. They want the best service available, with personal, tailored advice. Our clients want to be represented by solicitors with experience and talent, who are known for giving the very best of themselves.

I believe that such solicitors will always do well, irrespective of the competition. They aren’t bothered about competing with cheap divorce websites, because solicitors can only ever sell brains, skills, experience and quality. I think that the discerning public know this – and will vote with their feet.

As Joe pointed out, a survey conducted in Liverpool earlier this year found that the majority of people in that city preferred “traditional solicitors” to handle their affairs. When faced with a choice between Tesco, the Co-op, the AA and a traditional law firm, 80 per cent of people chose the latter.

My view, having listened to Joe, is that solicitors shouldn’t fear the Big Boys who are hopeful of grabbing mass market clients with quick-sell marketing. Instead, let’s all keep improving the quality of our services, investing in technology and improving our skills. If we do so, we will not only survive – we will thrive.

Other speakers on the day included Joanne Barnett: one of several feisty Manchester women barristers who spoke. There followed a perceptive look at the newly-introduced Family Procedure Rules by Archna Dawar of Exchange Chambers. Barrister Frances de Navarro – one of my future tips for the top – provided a riveting review of current children law, both private and public.

Susan Deas gave a fighting performance on the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Who would want to be against her? Of course we disagreed about what the Supreme Court will ultimately decide to do in the case of Kernott v Jones. No doubt our differences arose because I am a family lawyer, whereas Susan also has a Chancery perspective. The discussion highlighted the current deficiencies for cohabitants who seek a remedy in law.

Solicitor Liz Tait, on behalf of Resolution, spoke eloquently about the benefits of collaborative law for the uninitiated. Chartered accountant Jackie Clifford spoke about business valuations in family law. She was very good, and the usefulness of in-house forensic accountants could not have been made clearer. I’m glad we have our own in house team: it beats me why more firms don’t.

Finally the star of the Manchester family bar, Sally Harrison QC, spoke about prenups – and I was pleased to note that we appear to be in agreement! Neither of us likes the idea of strict prenups becoming law without a safety net.

Many thanks to Joe, to Bolton Law Society and to all the speakers and audience members for a truly tremendous day. Bolton Law Society even ordered me kosher food, which I didn’t ask for! It was all so very much appreciated.

What’s going on in the "divorce arena"?

Marilyn Stowe — Wed, 31 Aug 2011 07:34:51 +0000

Family lawyers are often reticent to discuss what is really going on in their practices – so Grant Thornton’s Matrimonial Survey provides a welcome opportunity to find out. This annual report from family lawyers, now in its ninth year, has become a must-read for those of us with an interest in what the accountancy firm calls the “divorce arena”.

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.

The Experts: Maintenance law must be clarified

Marilyn Stowe — Fri, 12 Aug 2011 14:44:11 +0000

This is my latest post for The Times, which appears on The Experts blog.

Spousal maintenance is the most contentious area in family finance. Ex-husbands bitterly resent paying it and ex-wives fight tooth and nail to keep it. It is a tax-free income that some see as a continuing windfall and others a hard-earned necessity.

I wholeheartedly support the fact that judges have flexibility in deciding how to settle financial matters during a divorce, because a system based upon rigid percentage divisions can make for grave injustice.

However, every so often, judges dig themselves into holes. We have seen it with capital settlements to wealthy wives and also with pre-marital agreements.

Now we are seeing it again.

There is little judicial guidance on the correct period of time for maintenance payments to continue for less wealthy ex-wives. At what point should maintenance cease – if at all – during the joint lives of the parties, assuming the wife never remarries?

It all depends on the facts of each case and the opinion of the judge. Only if the judge is “plainly wrong” is his or her decision subject to appeal.

This problem becomes particularly acute when children are involved. Take a wife whose income prospects, unlike her husband’s, have been damaged following years of full-time childcare. Should she have her maintenance terminated before or even after the children have flown the nest? Should a poorer wife (unlike her wealthier sister, whose income claims have been bought off by a lump sum) be required to go to work, irrespective of the additional pressures it places upon her and her children? Should the husband or the father be entitled to keep everything he earns, despite the permanent disadvantage to the mother of his children?

The recent Court of Appeal case of N v N, innocuous at first glance, raises some very important issues to this extent.

Mrs N agreed to a fixed term of maintenance when she divorced in 2005, despite having two young children. When the fixed term was due to end, Mrs N’s circumstances and those of her children were such that she applied for an extension.

She represented herself, while her husband was able to afford solicitors and counsel. The district judge ordered that the term to be extended by little more than two years, to April 2012, by when her youngest child would still be a minor.

Mrs N appealed. The circuit judge set aside the original order, substituting a further term to August 2015.

A written application to appeal to the Court of Appeal was made by the husband’s lawyers and refused by Lady Justice Black. Mr N was then able to fund an oral hearing of the application at the Court of Appeal. Mrs N, representing herself, attended.

Lord Justice Thorpe granted permission for the husband to appeal. The judge praised Mrs N’s abilities in court, but then re-imposed the April 2012 order.

At least four judges have wrestled with the facts of this case so far. Each judge has their own opinion as to whether or not Mrs N’s maintenance should continue and for how long.

Mrs N is seeking permission to have her case heard by the Supreme Court, and perhaps – if this innocuous case advances that far – their Lordships will seize the opportunity to clarify the law.

Marilyn Stowe is the senior partner at Stowe Family Law

Getting divorced: a client’s tale

Marilyn Stowe — Tue, 21 Jun 2011 15:44:57 +0000

As a family lawyer, I feel incredibly privileged to publish this post. I have written before about representing clients who are coping with serious health issues. None of us are machines and it can be very hard to sit, calmly, across the table from someone who is fighting a life or death battle, as well as a divorce. I have to keep my professional mask firmly in place, no matter how upset for the client I may be feeling inside. Life can be as cruel as it is wonderful, but I know that my client wouldn’t thank me for showing emotion. I do what I am expected to do – my job – and I do it as professionally as I can.

Cases are concluded, files are sent into storage and clients move on with their lives. As lawyers, we know exactly what we have achieved for each client, but we don’t always know how well we have done.

A few cases have always stuck in my mind, and I have often wondered how those former clients are faring. Until this week, however, I did not know that one of them had become a regular reader of this blog. When she read Friday’s post, in which I described reviewing our files at Stowe Family Law, it jogged memories of her own case and prompted her to get in touch.

Yesterday morning I received her email. It is published below, as it was received and with the writer’s consent – and it has filled my week with joy! It is one thing for the firm to receive positive “reviews” in UK legal guides; it is quite another to receive such a fantastic tribute from a former client.

While puffing away on my Wattbike this morning, I was thinking that as much as our former client is grateful to us, we are equally grateful to her. Her email has made us prouder and happier than she could ever have imagined.

Hi Marilyn,

I have wanted to write about my involvement with you and your practice for a long time. I’m not sure this is the right place to do it, and I am writing as not directly to you, but more about you, and some of the things I went through. I thank God for you so often, and hopefully someone will be able to make sense of the things I went through and make it more readable! So….

***

I have wanted to write something about my experiences with Marilyn, Rachel and “the team” for a long time. I hope you will forgive my tardiness!

When I attended my initial meeting with Marilyn, I was bald, fat and distraught. I had just finished chemotherapy for breast cancer, and had yet to start radiotherapy and herceptin treatment.

My husband had simply picked up his laptop one evening, told me he “couldn’t take this anymore” and left.

I was absolutely devastated by this, (when I actually realised he meant he was leaving me) and of course terrified for the future. A friend gave me the firm’s telephone number and said Marilyn was brilliant! What an understatement!

At the appointment, I was hot, flustered and in tears. I had to discard several items of clothing (it was December if I remember correctly), even my wig had to come off! I must have looked appalling!

Marilyn could not have been kinder, she was understanding, down to earth and practical. I did not want a divorce, I wanted my husband back, but Marilyn talked about practical details and called in a “team”.

My husband had his own business, in which I was a partner, and I knew that if a divorce did go ahead he would play around with money, and almost certainly hide whatever he could. I think Marilyn had worked this out though before I even admitted it to myself.

The team consisted of Rachel Roberts and I know a forensic accountant was present, but I don’t remember who else. Beside being distraught, one of the many side effects of chemotherapy is something called “chemo fog”. I swear, it destroys your memory cells as well as leaving you stuttering and stammering!

Sorry, I am probably rambling a little, my chemo fog has lasted a lot longer than normal, apparently due to the added trauma of my husband leaving me!

After the initial meeting I tried my upmost to salvage my marriage. Divorce was the last thing I wanted, so I did not make any further appointments and did not contact Marilyn at all.

In February Marilyn wrote to me, not a pushy letter, a kind letter, explaining that she could not get my situation out of her mind, and generally wanting to know how I was and if my situation had been resolved.

I had been trying to pretend to myself that everything would be ok. That my husband would return and things would be mended.

Of course this wasn’t so. By now he had bought a new house for himself and got a girlfriend. I did not know about the girlfriend for quite a long time, (she was of course around when my husband left), but it was something that never even crossed my mind.

I called Marilyn and made an appointment to see her, mostly to try and protect myself financially as I was extremely worried about the situation I was in.

Marilyn told me to go home and take care of my health problems, and she would deal with everything else.

It was a fantastic thing to be told, and I will be forever grateful for those words.

Fast forward through many letters and a court visit (at which I sobbed throughout). Amazingly I could remain in my home and my husband had to pay me a sum of money and maintenance every month.

I still hate the fact that I am divorced, but Rachel virtually held my hand the whole way through, and managed to ensure that I did not have to worry financially.

I will always be grateful for the help and kindness shown to me by all the staff, including the receptionists and Charlie in accounts. It was a horrendous time in my life, and though they couldn’t take the pain away, they certainly looked after me throughout it.

My, by now, ex-husband challenged the maintenance order just last year, and even as things were being looked at, and I was prepared to settle, Marilyn called me at home, in disgust at the way his solicitor was handling things. (Marilyn checks through all the files of all ongoing cases).

I was summoned to her office, where I was told that, I was not to settle, but I was to let them take care of things. Marilyn dictated a letter to my husband’s solicitor, and quite honestly, if I had been her (the opposing solicitor), I would have been terrified!

Again, other than fill in some forms myself, everything else was taken care of.

I believe a forensic accountant went through his books, and discovered that my husband had withheld information about some land he had sold to builders, and the fact that he had since bought a new farm.

I did know the land was due to be sold as when we were together I was very much involved with the running of the farm, and attended planning meetings etc. I just didn’t know that it had all gone through.

As expected things were resolved in such a way that I was not unduly affected.

I honestly do not know what would have happened to me had not Marilyn made the first phone call. She anticipated every move he made, and helped me more than she will ever know.

Thank you Marilyn, and both Rachels.
(All that remains now, is to be invited to the races!)

I hope you can make sense out of all this, I know there is a little bit of rambling going on. But it is all very sincerely meant.

The Experts: Baying for the blood of the famous

Marilyn Stowe — Mon, 23 May 2011 17:53:15 +0000

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

Marilyn Stowe

As a family lawyer, I am accustomed to representing men and women whose lives have been turned upside down after relationships have broken down. Some of our clients are famous and most are not so famous. However many of them share common ground. Their relationships have been destroyed by indiscretions. They underestimated the consequences.

In my experience, famous men and women are no less prone to temptation than anyone else. They make mistakes. They let their guard slip. They do things in an instant that later, in the full light of day, they bitterly regret. Are they different from any of us? I don’t think so. We are all human beings, and none of us are perfect.

So should celebrities’ indiscretions ever be splashed across the media, flung into the public domain for the rest of us to salivate over?

I am not so sure, just as I believe that divorce cases, many containing “juicy detail”, should always be heard in private. Our courts are being urged to open their doors as widely as possible, but I would argue that in private law cases, this is wrong. What a client does within his or her marriage should remain private. That includes financial arrangements unless the courts direct otherwise, in cases of extremis when naming is required.

For example, if judgments are to be published because they are part of precedent, then all parties should be anonymised. The private lives of those unfortunate enough to come before the courts should remain private. Is it right that at some point in the future, Beatrice McCartney will be able to read the public judgment of her parents’ financial battle and the comments of the court about her mother? Whose business was it anyway?

Likewise, a footballer is famous for being a footballer. I am not interested if he is happily married or otherwise. What he gets up to in his private life should be a matter for him. The courts understand this and do their best to help.

All would be well except that his fame, whether he sought it or not, makes him a target for all those who, a couple of hundred years ago, would likely have been cheering the arrival of the tumbrils in Paris. Back then, the crowds bayed for aristocratic blood and they got it. Due to their position in society, the aristocrats were seen to deserve such fates. Les Tricoteuses sat close to the guillotine, knitting as thousands of men and women were decapitated. Everybody cheered and the bodies were thrown into lime pits.

In 2011, we think we have changed. But does human nature ever really change? Or is it merely controlled in our more sophisticated times, unleashing itself in a different way?

I am aware that in the face of fierce arguments for the naming and shaming of holders of superinjunctions, not to mention a Twitter storm, my views may place me in the minority. However I was pleased today when Mr Justice Eady rejected an application to discharge a footballer’s privacy injunction. As the judge stated: “The court’s duty remains to try and protect the claimant, and particularly his family, from intrusion and harassment so long as it can.”

As a divorce lawyer, when I read about the actions taken to stop a story coming out in the press, I think of my own clients and their families – and my sympathies are entirely with those who seek the protection of the court.

Times Law: The Experts