Our parents have been staying at her home, following my mum’s recent stay in hospital.

The lovely Ruby, who is my mum’s devoted carer, is also staying there. So on Friday night the roll call was extensive: Aunty Doo Doo, her husband, their daughter and fiancé; his parents; our parents and Ruby; my brother and his family, us and their two dogs. What the future in- laws thought of us, in the midst of complete chaos, where we all had to pitch in I can’t begin to imagine.

“Did you ever see the movie Meet The Fockers?” I asked them at one point, thinking of the film in which Ben Stiller’s in-laws meet his wacky family. Although they had not, and this was their first visit to meet us, they took the madness in good part – even when my sister’s two little dogs burst through the French doors into the dining room and ran under the table to play with the guests’ legs. As we were leaving, my husband’s big feet sent the dogs’ water bowl in the hall flying and soaked the carpet. Abby and Jonny, madly in love, sailed through it all, oblivious. Jonny has turned out to be a perfect fit for the family. He’s seen us au naturel for some time now and never flinched. Long may he stay that way!

As for me, I was tired out. Last week was as hectic a week as I can remember. Our firm’s PR company, Tinderbox Media, leapt into action when the Kernott v Jones judgment was handed down on Wednesday. I was despatched to London and I appeared on BBC Breakfast the next morning, and also wrote a half-page editorial with advice for cohabiting couples, which appeared in The Daily Telegraph on Saturday.

There was no time for praise, or discussion at dinner. There was too much going on.  Mum fights a daily battle to keep going. She amazes me with her resilience and bravery: how does she manage to keep her spirits up? She and my dad sat and smiled through the chaotic dinner. They were clearly delighted to be surrounded by the family and the future in laws. Dad is nearly 80, but copes wonderfully and always has a brave face despite his fears and concerns.

He has himself become something of a “mini celebrity” recently. The photograph of him running with Sir Jimmy Savile (below) has appeared in a number of local newspapers, submitted by others who were also in the picture. He smiled when everyone teased him at dinner about being famous. I told the future in-laws about his brilliant marathon running career (Dad has run more than 50 marathons in his time) and they were clearly impressed.

The conversation turned to my hobby of going to spinning classes at the local gym. I told them my favourite lesson of the week was coming up on Sunday morning, with an instructor who is also trained in Thai boxing and gets the class cycling faster, harder and reaching higher levels than the rest. He is fantastic.

It’s funny how coincidences happen. As I was leaving the spinning class on Sunday, I thanked the instructor. Out of the blue he asked me how my father was. I have no idea how he knew the connection, perhaps he saw him in the Jimmy Savile photos in the press. Anyhow it turns out that 20 years ago, when a youngster he used to wash dad’s car. He lived with his mum behind the local pizza restaurant, and he recalled dad being “a real gentleman”. He said some great things about Dad and asked me to pass on his best wishes, although he thought that Dad would probably have forgotten him.

Forgotten him? Dad remembered him in a flash. “Nice lad”, he said. “They had it tough. He lost his father quite young. Very nice lad.” He said nothing more and didn’t need to. My dad is a very decent man.

So Jonny, what kind of family are you marrying into? Do you need to panic? I don’t think so.  Consider this from me, (one of its more mature members) to you. This weekend my dear father had, unspoken, taught me another important lesson in life about values that really count.

It’s very exciting to appear on TV, to appear in national newspapers and to receive positive comments afterwards, all in one week. But none of that can ever compare to acts of decency and kindness that survive in the hearts and memories of others for twenty years.

Thanks Dad.

Recently I have come across situations where, following the death of a testator, the beneficiaries have decided to alter the terms and “remake” the will so that it becomes more advantageous for tax purposes. In one case, the amendments were intended to help in a divorce case, to defeat the claims of the opposing spouse!

If all the beneficiaries are intended to benefit by the testator, but not in the way that the beneficiaries ultimately agree between themselves, then why not? If those beneficiaries are all comfortable with the new arrangement, enter into a deed varying the provisions of the will and are to be comfortably provided for, it can make reasonable sense.

But let’s take this a step further. What if the testator was steadfast in his or her refusal to provide for an adult child? And even took the trouble to leave a letter explaining why that child was not to benefit?

Should the child be able to apply for provision out of the parent’s estate?

The answer is yes, it is possible. However it is up to the court to decide upon all the facts and circumstances of the case, having heard the evidence. The outcome is dependent upon the discretion of our judiciary.

Ilot v Mitson

The case of Ilot v Mitson was recently adjudicated by the Court of Appeal. In that case, testatrix Melita Jackson had left all her money, some £500,000, to animal charities. We lawyers are quite familiar with this possibility, telling our clients that inheritance expectations are usually irrelevant because the money might be left to the cats’ home. Here, it really happened. During her lifetime, Mrs Jackson had shown no interest in animals. Even so, the animal charities were set to inherit instead of Mrs Jackson’s only child, Heather Ilott, from whom Mrs Jackson was estranged.

Mrs Ilott challenged the will: a district judge found that it did not make “reasonable financial provision” for her and awarded Mrs Ilott £50,000 from the estate. When Mrs Ilott appealed against the amount awarded, seeking to have it increased, the animal charities cross-appealed.

(I noted that Mrs Ilot was represented in the Court of Appeal, pro bono, by John Collins: a very senior barrister in Leeds and a former head of his chambers, who I don’t believe I have ever seen without a smile!)

The relevant law is the Inheritance (Provision for Family and Dependants) Act 1975. Section 3 sets out the factors the court may take into account when deciding whether or not to make provision for a claimant:

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

In the High Court, Ilot v Mitson came before another “Leeds lass”: now Mrs Justice Eleanor King QC. The judge set aside the provision for Mrs Ilot and awarded her nothing. At a later hearing, Lord Justice Wilson gave Mrs Ilot permission to appeal for a second time, although he observed that had she originally been refused an award, he would not have done so. The case was then heard by the Court of Appeal then had to decide what to do.

The relevant law begins with Re Coventry (1980). In that case a son applied for provision from the estate of his father, who died intestate, and lost. He lost an appeal also. It was an odd case because the 74-year-old widow, his mother, was on benefits. The son applied for a greater slice of the intestacy. He failed.  The Court stated that the only function of the law in such cases is the provision of reasonable maintenance, not a legacy.

So what does “maintenance” mean? In Espinosa v Bourke (1999), Lady Justice Hale stated:

The court has, up to now, declined to define the exact meaning of the word “maintenance” and I am certainly not going to depart from that approach. But in my judgment the word “maintenance” connotes only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. The provision that is to be made is to meet recurring expenses, being expenses of living of an income nature. This does not mean that the provision need be by way of income payments. The provision can be by way of lump sum, for example, to buy a house in which the applicant can be housed, thereby relieving him pro tanto of income expenditure. Nor am I suggesting that there may not be cases in which payment of existing debts may not be as appropriate as a maintenance payment; for example, to pay the debts of an applicant in order to enable him to continue to carry on a profit-making business or profession may well be for his maintenance.

What test is applied to make such a maintenance award? How does the court apply the provisions of Section 3 of the Inheritance (Provision for Family and Dependants) Act 1975? In the case of Re. Coventry, Lord Justice Geoffrey Lane stated:

First of all, did the statutory provisions relating to intestacy operate in this particular case so as not to make reasonable financial provision for the plaintiff son; secondly, if they did so operate – that is to say, if there was no reasonable provision – should the court exercise in its discretion its power to order some provision to be made; and thirdly, if so, in what manner should that provision be ordered?

In that case the answer was yes to the first part – and no to the second. But how does the court exercise its discretion so the answer is yes to both?

When Ilott v Mitson was heard by the Court of Appeal, Lady Justice Arden stated:

“For the reasons already given, the conclusion of the District Judge was not on analysis based solely on filial relationship and financial need….The court is required to look at all the factors listed in section 3. These include actual and prospective financial resources, which would include the ability to earn a suitable income. The financial circumstances of the applicant need to be considered against all the other factors in the case. It is in that sense that need alone is not enough.”

As Lady Justice Black (another former “Leeds lass”) pointed out:

Each case depends upon its own facts and upon how the judge strikes the balance between the section 3(1) factors in first answering the question whether reasonable financial provision has been made for the applicant and then determining what order to make. That is clear throughout the line of authorities from Re Coventry onwards. The following passages are examples only of what has been said:

“In every case, inevitably it is going to be a matter of degree….In the end, to my mind Oliver J struck a balance and reached a conclusion which I find it impossible to fault…” Re Coventry [493D and G]

“A judge making a decision at the first stage, although he does not exercise a discretion, does make a value judgment based upon balancing the factors set out in s 3 of the 1975 Act.” Re Hancock [353H]

“In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s 3 of the 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant.” ibid [357A]

“Section 3(1) of the 1975 Act sets out the matters to which the court has to have regard.

It is a complete list……

The task of the court is that required by s 3 of the Act. It is therefore incumbent upon the court to consider all the matters referred to in subsection (1) of that section….” Espinosa v Bourke [760D]“

In the case of Ilott v Mitson, the Court of Appeal came to the conclusion that the District Judge had done the job correctly, and so upheld the judgement in favour of Mrs Ilot. However it was also made plain that she could also have lost on the facts. So it’s a tough call, advising a potential client  whether or not to proceed. For example, had the case come before Mrs Justice Eleanor King first of all, it is highly likely that Mrs Ilot would have lost – and would have been unable to appeal the decision.

The amount to be received by Mrs Ilot was then remitted to a lower court to consider, with the Court of Appeal urging the parties to settle with goodwill on both sides. For all we know, this may have happened already.

If you are making your will, I would urge you not to write off one of your nearest and dearest – even if you aren’t awfully keen on them.

Instead, even though you won’t be there if it happens, consider how the subsequent legal costs could ravage your estate and affect your intended beneficiaries. Take a pragmatic view.

The original Sirens were three creatures of Greek mythology. They were alluring seductresses, each one half bird and half woman, and their irresistible voices and music lured sailors to shipwreck and death. Whoever first imagined the Sirens, all those thousands of years ago, had a great understanding of human nature.

I can assure you that thousands of years later, Sirens are alive and well – and still active. They may not be living on the rocks of a craggy coastline any longer, but they make their occasional appearances in divorces around the world. They can be men but in my experience, they are far more likely to be women.

Today’s Sirens

As a family lawyer, I have on occasion encountered Sirens. They are women who, when a marriage has broken down, have the most to gain. A Siren deliberately heaps tragedy on a family, because when she has set her sights on a man who is already married – and also, in most cases, a father – she gets him. Greek mythology had Orpheus, who could play louder than the Sirens could sing and allowed the men on the Argo to escape their otherwise inevitable fate. Sadly, there are few men like Orpheus around today!

In my experience, the Siren will involve herself as closely as she can with the unavailable man. She sees him as an unobtainable challenge, and doesn’t care that he is married. She will embark upon a passionate affair with him, seduce him, fill his head until he can think of nothing but being with her and rejects everything he has for her. Meanwhile there she sits, playing her music and singing her song.

A Siren is so fresh, so new, so compliant and so understanding. Perhaps she works alongside the unsuspecting husband, who admires her diligence and her skills. She certainly has more time and money to lavish upon herself and upon entertaining the husband. The man’s tired wife may be worn out with work and childcare, shopping and domesticity. She cannot hold a candle to the intoxicating Siren, who replaces her in the increasingly blinded husband’s affections.

The Siren’s Trap

As realisation dawns upon the tired wife, she falls into the Siren’s trap. The wife will become upset, angry and unpleasant. The Siren will drift, smiling, in her sea of calm. She will serve to highlight all the husband’s complaints about his wife, knowing that he is setting course for the rocks. The husband, puffed up with pride about his conquest, pays scant regard to the perilous sea in which he is sailing.

The Siren beckons the besotted husband onwards, feigning innocence and keeping her own wants carefully disguised. She is rewarded with the husband’s love and sympathy. She allies herself with his needs, his cares and his distress. His wife becomes his enemy.  The Siren takes pains to conceal her power over the husband, while encouraging him to leave his “unsupportive” wife and children. The Siren’s special trick is to let him believe that she is blameless, and that he is the only one at fault.

She keeps on singing her Siren call.

The Siren knows that as long as the husband believes in her, he will protect her. He will bear all the strain, the guilt, the treachery and deceit, and he will fully absolve her of any wrongdoing. How can he do otherwise? How can he admit that his new love is as deceitful and treacherous, perhaps more so, than he is? How can he admit that she has seduced him – not the other way round? He dances to her tune. Her singing and music continues softly, heard only by him. His hearing becomes increasingly sensitive because he is now almost blind and powerless to prevent tragedy. What the Siren has persuaded him to believe, he now believes himself. His self-worth, his integrity, his honesty – all are lost in the swirling waters beneath him, as he sails towards the rocks.

The Siren’s Plan

Underneath her silken skin, the Siren desperately wants what belongs to the wife. The Siren wants the wife’s social status, her home and her financial security. The Siren cares nothing for the tragedy she inflicts upon the husband’s family. As the boat crashes onto the rocks, she continues to protest her innocence, persuading the husband to assume sole responsibility for the tragedy that engulfs and overwhelms the family.

As he sees his wife and children thrashing helplessly in the sea, the husband’s guilt deepens. He knows he has passed the point of no return. He leaves them to their fate and surrenders himself to his new life with the Siren, and the aftermath unfolds on dry land. Some Sirens disappear, disenchanted with the husband’s feet of clay, and move on. But most, having fought their battle, will stay with the husband. He can still prove useful to them.

Years later, the Siren is now the husband’s wife. She has her own home, her own children and her own nest to protect. She forgets that she was once a Siren, and how vulnerable her husband was to the Siren’s call. When a Siren becomes a wife, she becomes as vulnerable as her predecessor.

I believe that in such cases, the husband’s blindness does eventually lift. He comes to his senses. He realises, bitterly, what he has cast into the sea. He grieves for what he has done to his loved ones and above all, to his integrity and sense of self. And at some point in time, it will become too much for him. His Siren, who knows it all, will go the same way as his first wife. And this time, he has no regrets.

It is important never to underestimate the impact of shock on a client. Shock affects a client’s state of mind and can take weeks, months or even longer to overcome. Some of those who find it difficult to return to normal can even develop the more serious (but treatable) condition known as post-traumatic stress disorder (PTSD).

When I see clients who appear to be suffering from shock, I politely and gently suggest that they return to see me when they are able to give me the information that I need to advise them appropriately – and also when they are able to make an informed decision about their future. It is clear even to me, a lay person, when a client is in deep shock and unable to take in a single word that I am saying. If a client persists, then of course I will give my advice – and I will follow it up in writing, as I do with all clients. At least the client will have something to read when they feel better able to take it in.

How does psychological shock manifest itself?

The symptoms vary but at first there may be numbness, a feeling of being dazed and an inability to absorb the information which has led to the shock. The mind will keep replaying the information, totally denying it, refusing to believe it can be true. Nothing else that is happening will matter: the surrounding circumstances, the people, what is playing on the radio… They will all blur into the background.

I had never experienced “shock” at first-hand until very recently. Put simply, it was awful.

A close relation of mine (who I will call CR) was being treated for an apparently mild skin rash. A consultant dermatologist diagnosed it as a type of eczema or skin allergy. A cream was prescribed, but the rash worsened. It did not respond to treatment; eventually it flared and a second opinion was sought. I volunteered to accompany CR to the hospital but was told it wasn’t necessary. An hour later I received a phone call from a strange-sounding CR to say the second consultant had dismissed the eczema diagnosis. This doctor thought that it could be cancer, of which the rash was a symptom. CR was immediately admitted to hospital.

My response was textbook.  I was stunned. It was only a rash! It felt like my head was floating above my body. I felt my face start to burn up. For a moment I didn’t even know where I was. And I denied that such a diagnosis could even be a possibility. I refused to believe it. It couldn’t be true.

I won’t detail the devastation I felt that week, trying to come to terms with the possibility of cancer in one of my loved ones, but as a result of the shock I suffered a complete loss of appetite, sleeplessness, nightmares when I did sleep, inability to concentrate and so forth.

There is a very helpful article entitled Coping with Trauma on the website of the Royal College of Psychiatrists, which describes the symptoms of shock and the response and recovery from the condition. I recommend to anyone who is suffering from shock. You may find it useful to understand that the range of reactions to the shock you are experiencing, while very unpleasant, is also normal.

After the trauma was over – and thankfully, the diagnosis was not cancer – I could begin the recovery phase from the shock. I discovered that this takes time and I had to be patient. I learned that having been in a state of shock for a week, I couldn’t expect to recover within hours. My clients are often in shock for much longer because their trauma is ongoing and may reoccur over a lengthier period.  I found the bullet point advice on the website, about coping with and recovering from shock, comforting and helpful.

Interestingly, other members of my family congratulated me on “staying strong” for everyone else. In fact I had not been able to speak to outsiders about the trauma, nor to express any feelings, because – as a result of the shock – I hadn’t had any.  I also expected to feel huge surges of relief after the worst case diagnosis was ruled out, but I didn’t. I felt numb and flat. That too, I discovered, is normal.

At the end of the week it felt good to return to work and see that all was functioning normally. Normality felt good. It was nice to see a smiling receptionist and hear her say, “Welcome back Mrs. Stowe. Tea or coffee?” It struck me that the office is indeed a quietly calming place to be for traumatized clients, just as we have designed it to be. But I never imagined I would be the person to try it out “from the inside”!

For clients going through a year-long experience of divorce, coping with and healing from severe, prolonged emotional and psychological trauma will clearly take longer. This is particularly true if clients were already under a lot of stress before the case began. I recommend seeking professional advice if symptoms such as severe anxiety, depression or fear become too much to handle, if you avoid or are unable to connect with others, or if drugs or alcohol become serious problems. As previously discussed this is nothing to be ashamed of, will not affect the outcome of the divorce and shows that you have insight into your own condition.

This experiencing psychological shock has been a salutary experience for me. I believe that when I deal with clients in the future, I will have a greater understanding of what they are going through. I hope that I am better-equipped to reassure them that the range of deeply unpleasant feelings they may be experiencing is normal, and that these will pass with time and understanding of an abnormal situation for which they were unprepared.

As I wrote at Christmas, my blog is intended to be real, about real feelings and real people – and I am a real person too. This is a very personal post, but I have written it for two reasons.

Firstly we all have been, or will be, touched at some point by trauma. Life is like that. Life happens. The unexpected comes unexpectedly, out of the blue. We aren’t prepared for it. So I hope that by sharing my response to an unexpected trauma, it may be of some comfort to others who are in shock or who are recovering from it.

The other reason for this post is that someone out there may also have and “eczema rash” and, although I do not wish to be alarmist, they too may be receiving the wrong treatment. If that could be you, please get a second opinion, quickly.

Last week I had finished writing my post about John Ruskin, had exercised flat out on my Wattbike and was looking forward to a calorie-filled Sunday lunch with my sister Suzy and our husbands. We were going to try out a restaurant in Harrogate and then do some Xmas shopping.

Then the telephone rang – and everything changed.

My sister was crying on the phone. Our mum had fallen and was in hospital. Dad had called Suzy in a dreadful state and asked her for help. My parents rely very much on her because she is a wonderful nurse with them.

The accident had happened in Netanya, Israel, where my parents spend part of the year. Mum had been admitted to hospital and my sister needed to travel out as quickly as possible. We were told that it wasn’t serious: my mum was in shock, but ok.

Unlike Suzy, I know I’m not a good nurse – but I do have my uses. Within 20 minutes I had my sister and her London-based daughter, Abby, booked on the next flight out from Heathrow and a car had arrived to take Suzy straight to London’s Heathrow Airport. With Suzy on her way, I spent most of the day on the phone to my dad, trying to keep him calm. He sounded increasingly desperate as he described my mum’s condition. Very worried about them both, I telephoned some of their friends and asked them to see if they could help until my sister arrived. When the friends called back, they made some comments about my mum’s condition that worried me more. My sister arrived, phoned from the hospital and said that although my mum was suffering from superficial head injuries, her condition was stable and there was no need for my brother or me to travel out.

The next day the world changed again. Suzy asked me to get there as fast as I could.

I found myself at Luton Airport, on the next flight out of the UK to Tel Aviv. Two thousand miles from my mum and panicking, I spent £50 on sweets, chocolates, energy bars moisturized tissues and magazines that somehow I thought we all might need in the hospital.

I arrived in Israel a few hours after my brother, who had taken a night flight from London. I checked into a local hotel and a waiting taxi took me to the hospital, where I raced up a few flights of stairs to my mum’s ward. I flew past people on trolleys in the aisles and people lying in beds until I came to the end of the ward and saw a side ward with four women in it. One of them was my mum. I couldn’t easily recognise her from her facial injuries. I went straight up to her and kissed her. She managed a weak smile and whispered, “I’ve been waiting for you”. All those years of hiding my feelings from clients came in very useful at that point. I was terribly shocked when I saw her and couldn’t show it. The feelings are difficult to describe.

The main challenge was stabilising her through the trauma she had sustained. She had fallen flat onto her face. She isn’t strong or well, and her blood pressure was dangerously high. There were two drips over her bed. My exhausted father was sent back to their apartment to get some sleep along with my brother. Suzy, Abby and I sat on some white plastic chairs we found to monitor my mum through the night at her bedside.

At around 2 am I found myself looking around the darkened ward, thinking how surreal it was. What was I doing in a Middle Eastern hospital where few people spoke English? Nothing made sense. When had I last eaten? I couldn’t remember. Why wasn’t I asleep at home? Why was my mum lying in that tiny bed so ill?  The woman in the next bed suddenly sat up and cried out. Her appendix had been removed and she was six months pregnant. She was in terrible pain and clearly thought she was miscarrying. I ran and got the nurse and a doctor, but there was no treatment they could give her. They told her to try and get some rest, but I managed to understand from her that she was too frightened to go to sleep. So during that night I found myself nursing a complete stranger. My Luton tissues came in handy to mop her brow; I fetched her some water from a vending machine,which she sipped through the night. She held my hand at one point, as I was trying to get her to sleep and at the same time there was Mum in the next bed, who also had to be nursed. At one point the woman asked me in her broken English if I was a nurse, and I said no. It was one of the kindest things that anyone has ever said to me.

As for my mum: a wise person once said that there is no point worrying about what might happen in the future. Just love those around you as much as you can. That’s what I told myself and kept telling myself during that night as Suzy and I watched over our mum.

Che sera, sera. What will be, will be.

My mum made it and we are all now home in England. What’s more, when she was first discharged, “as weak as a kitten” in her words, she still managed (with help) to light the Shabbat candles in their apartment. Together we celebrated the first night of Chanukah with the lighting of more candles. She sat at the table to eat for a while, and again it was all surreal. It seemed we had gone back in time forty years, and that we sitting around the table as children again. My traumatised parents – my barely recognisable mum and my stressed out dad – beamed at us, and told us how much they loved us.

Many of us, like me, have families and friends, parents, spouses, children, brothers, sisters and grandparents, that we take for granted. We don’t tell them often enough, perhaps never, how much we love them.

At this time of the year, all of us, with or without faith are meant to celebrate a season of goodwill to all mankind. Families will spend time together with families. Friends will be with friends. Not everyone will be able to tell their loved ones how much they are truly loved. Many more will be desperately missing their loved ones: spouses or partners, parents and children, grandparents and grandchildren. They will be missing them and aching for an opportunity to tell them how much they are loved. Please think of them, too; there is nothing to lose by reaching out. Che sera, sera. What will be, will be. So what is stopping you?

Seasons Greetings, and much love to everyone.

Image credit: Mary Cassatt.

From the Solicitors Journal, 03/11/2009.

Tepid welcome for Law Commission’s review of intestacy laws for cohabitants

Cohabitants who have lived together for more than five years could be given the same rights on death as married couples under plans unveiled by the Law Commission.

The proposals, out for consultation until 28 February 2010, suggest that if a cohabitant dies without a will and the couple do not have children, the survivor would have the same rights over the estate of the deceased partner as a surviving spouse in a marriage.

One option put forward by the commission would see the whole of the estate go to the surviving spouse or partner, a move that one lawyer described as “potential dynamite for probate solicitors”.

If there are children, the minimum qualifying period in cohabitation cases would drop to two years, but ordinary rules would apply by default if fewer than two years had elapsed.

But family lawyers have only given a tepid welcome to the consultation.

Continue reading >

Parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups.

My opinions on prenuptial agreements are well known. I don’t like them, do not believe that they are “socially necessary” and do not believe that they should be automatically legally binding. I would not have signed one myself – nor married anyone who asked me to as a precondition of marriage.

However, parents of prospective brides and grooms are coming to see me in increasing numbers, to ask about prenups. Many of these parents are wealthy, some are super-wealthy and others are not wealthy at all. What they share are concerns about what will happen if their children’s marriages break down. They don’t want any of their hard-earned cash to pass to the divorcing spouses, and they are determined to protect their money.

It’s understandable. But is it reasonable – or advisable – to expect a future son or daughter-in-law to enter into a prenuptial agreement? I’m not so sure. What is often overlooked is the effect of a prenuptial agreement on the marriage itself. 

I believe that in many cases, the existence of such an agreement can actually bring about a divorce.

Consider the vulnerability of any newly married couple, working to make their marriage a success. Suppose they are showered with wealth by one side of the family. Then consider the effects of the imbalance that results if a prenuptial agreement is added to this equation. One party has the money; the other party is shackled to a piece of paper that – in theory – leaves him or her unable ask the court to use its discretion and consider needs and entitlements in the normal way. They are married, but they do not have an equal footing within their marriage. Their attempt to forge a life together can only be hampered by such pressures.

If family members feel the need to protect their money, they should ring-fence it so that no outright gifts are made until they are satisfied that the marriage will work. Here at Stowe Family Law we often advise parents on suitable trust structures and acquisitions of assets, loans and mortgages, in order to protect family money or assets.  It isn’t ideal and isn’t necessarily tax effective either, but it’s a practical option. It means that unwelcome and unpleasant pressure is not placed upon a young couple about to begin their life together, and it means that the balance of power between them is not disturbed.

In my work, I have all too often witnessed the catastrophic effects that wealth can wreak.

Common sentiments include, “You only have this house because my family bought it”, and “All you care about is your family and their money”. I have come to believe that a great deal of money placed into young, inexperienced hands – particularly if it is tangled up in legal “gobbledegook” – is a recipe for disaster.

My advice to parents who intend to give large sums to their children on marriage is this: protect your money, but don’t subject your loved ones to unnecessary pressures and constraints. In the worst case scenario, you could end up exposing your child to the very divorce from which you are trying to protect them.

Faith can be of real help to those inclined to call upon it.

On Saturday night, millions of Jewish people around the world will sit down to a festive dinner called the “Seder”, to celebrate the beginning of the eight days of Passover.

It is an opportunity for the whole family to gather round the dinner table and retell the biblical story of how Moses led the Children of Israel out of Egypt, crossing the Red Sea and wandering in the wilderness for 40 years, before arriving in Israel, the Promised Land. They escaped slavery and avoided the 10 plagues, which “passed over” their homes.

It is a time for the children to take part by asking four questions of the family. Traditionally, these are sung in Hebrew by the youngest child present, who starts off by asking, “Why is this night different from all other nights?” Those gathered round give answers, enjoy their dinner and give thanks for their survival. It is a festival which passes on the story of Jewish survival against all the odds. Moreover – and importantly – it is a time for celebration of the family and family life.

It is the issue of faith, no matter how that faith is defined, that repeatedly comes back to me in my everyday work. This, despite the fact that faith is often viewed as being “off the wall”, “irrelevant” or the provenance of extremists.

In a world that seems to worship the “have it all” mentality, no matter what the cost, so many of us seem to have forgotten that faith can be a force for good. Faith can give us a set of moral standards against which we can judge ourselves and make decisions. According to a recent study, we are all much wealthier than we were 20 years ago; but how many of us stop to give thanks for what we have? What we have is precious, but is easily lost – and all too easily thrown away.

Last Sunday was an extraordinary one for me. I was fully dressed, made up and setting off for a converted cotton mill just outside Keighley, in West Yorkshire, at the unearthly hour of 6.30am!

I was there for the filming of a new TV show, which starts on BBC One this Sunday, called Sunday Life. Presented by the former Olympic athlete Colin Jackson and the news presenter Louise Minchin, it will cover all aspects of faith. From what I saw, it will be a cracking programme. It appears to me that rather than being divisive and unpleasant, or focusing upon the dangers of extremist “religious” practices, this series aims to demonstrate the good things about moderate faith.

The first programme features a moving film about a visit to Auschwitz by the Emmerdale actress Georgia Slowe, some of whose own family members were murdered there.  I was deeply shocked to discover that some young people in this country are growing up believing that the Holocaust “never happened”.

Another feature was about an interfaith walk through England, which has arisen from a campaign by a woman who was badly injured in the London train bombings. The programme also has a family that will be reporting back each week on its discoveries about major religions.

I was there to review the papers, and I chose to talk about Tony Blair and his new “Faith Foundation“. I don’t have any arguments with what he said in his speech at Westminster Hall last week, but I do take issue with his policy of “We don’t do G-d” while in government, for fear of being thought a crackpot. My fellow panellist, the children’s author GP Taylor, spoke about a choirboy who has been bullied. It struck me that if the Prime Minister doesn’t robustly stand up for his faith in office, how can we be surprised about a choirboy’s victimisation?

I enjoyed my Sunday morning with the programme very much and I look forward to going back. In the meantime, the practical values of faith have been playing on my mind.

None of us can forecast what life is going to throw at us, and how it is going to test our strengths and weaknesses. I accept that divorce is an inevitable and unstoppable consequence of an increasingly materialistic society, especially if there is a rapid downturn in the economy.

At the same time I have been struck how, in several cases in which we have been instructed, a marriage is ending because one spouse was having an affair and thought it was possible to “have it all” – no matter what this decision inflicted on their partner and children.

There are those who would argue, why should someone stay trapped in an unhappy marriage? It is pointless and unfair to all concerned? I accept this, and I believe that many questions are unanswerable. However, I would still recommend some serious soul searching before pulling the plug. In such cases, I believe that faith can be of real help to those inclined to call upon it, by asking questions of our consciences and providing guidelines that can make the toughest of decisions a little easier.

May I wish “Chag Sameach” this Passover, to my Jewish readers worldwide.

Ms Mills is playing out her role as abandoned wife for all she is worth. She has her side of the story to tell, and I have no doubt at all that she believes every word she says. She has been lambasted in the media, but her efforts are producing results: the image of Sir Paul, a national treasure, has now been tarnished.

I think she intends to continue – and make a fortune into the bargain. From a legal perspective, however, Heather Mills is pushing her luck to the limit. She is not supposed to discuss her marriage until the case is over. In all probability, speaking out has already cost her a small fortune in her settlement.

Last year, in an article written for The Times, I suggested that Sir Paul should pay up generously and fast, to gag his errant wife for his own sake and for that of his family. Sadly, this never happened; the damage has been done and is likely to worsen. Will Sir Paul be able to stop her- permanently – in the court battle to come? Last year I might have said no, but her uncontrolled display has led me to reconsider this prospect.

Undoubtedly, Ms Mills has the right to freedom of expression. However, under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Sir Paul and his family from his first marriage have a right to a private life too. Under the Protection from Harassment Act 1997, they also have the right to protection from harassment. Therefore they can ask the court to make a permanent injunction, to stop Ms Mills washing the family’s dirty laundry in public.

The court must play a balancing act between parties’ competing rights. It isn’t easy – as J K Rowling has discovered. The Harry Potter author was unable to protect the privacy of her child and keep a newspaper from publishing photograph taken as mother and child walked down a street. In another case, however, when a husband wanted to sell the story of his wife’s adultery with a well-known person to the media, the court held that freedom of speech should only be constrained if it is necessary to do so. In that case they made an order to stop him.

Now the court too must decide if there is a genuine public interest in the disclosure of Ms Mill’s story. Its decision will be based upon her right to freedom of speech, and not to sell “tittle tattle”, or to act out of spite or out of the desire to make money, and in that regard they will consider also the balancing factor, the likely impact on Sir Paul’s – and his children’s – right to family life.

This task would prove difficult for any judge since Sir Paul is already regarded as “public property” and his first marriage was supposedly a very happy one. Ms Mills may seek to argue otherwise in an effort to bolster her own case. The outcome is likely to be appealed by the unsuccessful litigant, up to the House of Lords – or even to the European Court of Human Rights. Naomi Campbell appealed to the House of Lords seeking privacy, and was ultimately successful. Princess Caroline of Monaco also made a successful application for privacy. It can be done: in some cases, my clients have obtained “gagging orders” as part of their settlements, having also obtained interim injunctions beforehand.

I suspect that because Ms Mills has already splashed nasty allegations all over the world, she will be injuncted by the court from making any further disclosure. Her recent behaviour has hardly helped her cause. If she is injuncted, there are ways round the order, which include broadcasting or publishing material overseas. However, such actions would be contempt of court in this country, and liable to punishment by imprisonment. This would be all very well if she intended to leave England for good, but because her young daughter Beatrice is still within the court’s jurisdiction – and may not leave without the consent of her father or a court – it is unlikely that Heather Mills would put herself in such a position. Unless of course Beatrice was to reside permanently with her father and, given Ms Mills’ recent conduct, that possibility too should not be discounted.

To my mind, this part of the case could be much more interesting than the size of her eventual settlement. Before he began divorce proceedings, and before Heather Mills began her campaign to fight back and ‘validate’ her side of the story, Sir Paul was apparently untouchable, and well-placed to settle amicably. What a pity that the former Beatle did not fully protect the value of his reputation and the McCartney family’s reputation from the outset.

“If you had the opportunity, would you?”

A smart, attractive lady in her mid 40s came to see me recently. She is a lawyer by profession. Our meeting began very calmly and her problem soon became clear.

She is married to a chartered accountant. He is a partner in a multinational firm. They have three children, aged between eight and 14. They enjoy an affluent lifestyle. They have no particular worries and life proceeds smoothly.  On the surface, all is well and they are the perfect family.

She certainly hadn’t been looking for romance outside her marriage. Unfortunately, it arrived in the guise of an old university friend.

He is the MD of a successful family business. They hadn’t met for 20 years, but bumped into one another on opposite sides of a commercial transaction. He has a family, but has long since divorced his own wife. They “clicked” and have now embarked on a passionate affair.

Her husband has noticed she has become withdrawn and is worried about her. However, he suspects nothing. Listening to her, I was reminded of the film Unfaithful, which starred Richard Gere and Diane Lane as a “perfect” couple torn apart by the wife’s affair.

This lady wanted advice on the likely outcome of a divorce. When I asked how she thought divorce would impact upon her family, she burst into tears and her control slipped. All her guilt came tumbling out, and she said it was a relief to cry. She used up a lot of the tissues I keep in my desk. She said quite simply that it would devastate them all.

I answered her questions and explained that from a practical perspective, a divorce would not be a problem. Financially, the family would be fine. I advised her about the divorce process, the process for a financial settlement, the law about children, the likely costs and how it all worked in practice.

Then I gave her the advice I thought she really sought.

I told her not to do it.

I drew upon my experience gained from years of listening to clients’ problems and told her I thought that,

as long as her husband did not know about the affair, she still had the chance to salvage her marriage. Once he did know, the truth would be out and that chance would become remote. I advised her to ditch the other man and, if necessary, change her job or even initiate a career move. Although the pain of saying goodbye to the other man would be very, very tough, it would be nothing like the pain she could bring upon her family if the affair continued. She said she had “taken the lid off Pandora’s box”. I told her she could – and should – put it back on again.

Personally, I don’t think she will. Time will tell which part of my advice she will take.