Last week his latest judgment, S v AG [2011] EWHC 2637 (Fam), was published. It concerns the division of just £425,000 assets, the proceeds of a lottery win, between the wife who denied she had won it and the husband who said she had and was claiming an interest in it. How a case of this size brought by two litigants in person came to occupy the time of a high court judge in Central London is not clear. But it did, and he dealt with it as thoroughly as he would his usual caseload involving multi-million pound settlements.

(Although I wonder: might his fellow judges in the county courts, more accustomed to dealing pragmatically with a case of this level, have been more generous to the husband? I’ll come to that later.)

I once heard the Supreme Court judge Lord Wilson explain that when he is writing a judgment, he focuses very much on the “losing” party to explain why he has reached his decision. In this case, Mr Justice Mostyn had to explain to both parties, both of whom were litigants in person, how and why he had reached his decision.

S v AG has already been discussed in depth by John Bolch on Family Lore, so I’m not going to write too much about the specific facts of the case – except to point out that it was a long marriage, the parties having married in 1984 – and instead concentrate on the approach. It is important to note that the case apparently reached trial without any relevant papers! As a result, notwithstanding the appointment of two “McKenzie friends” to assist the parties, Mr Justice Mostyn had to adopt a far more “inquisitorial” role, which is routine for solicitors seeing a client for the first time but, in our aggressive “accusatorial” system, is an unusual approach for a judge.

He did not have the advantage (and luxury) of hearing erudite legal arguments from both sides, and making up his mind thereafter. He seems to have been obliged to consider all the potential legal arguments, for and against, all by himself and then make his own decision.

This is pretty much what we solicitors have to do when we meet a client for the first time.

When I first meet a new client, from the outset I am expected to give him or her an overview of what will happen, and what the likely result will be.  This can be a challenging task: inevitably, it will involve sorting out all the relevant information from all the information that is not. Clients don’t know what it is you need from them; as a result, much of what they volunteer and think is important, may not be. It’s up to me to decide what is important and what is not. I can only rely on what I’m told and sift it as best I can.

As Mr Justice Mostyn discovered in S v AG, both parties concentrated on the other’s conduct. For conduct to cross the (deliberately) high threshold and become relevant, it has to be very bad indeed. The judge didn’t think that it was a relevant issue in this case – and for 99.99% of my clients, it isn’t relevant either. Clients frequently think that it is, which makes it even more important that they are advised accordingly. As a solicitor I must advise clients to stay focused, unemotional and commercial – which isn’t always easy, but is always necessary.

And like Mr Justice Mostyn in this case, when I first see a client I have nothing by way of paperwork to help me. Since the Imerman judgment, even if paperwork is handed over, it will have to be handed back unread if it belongs to the other spouse.

So with no paperwork for guidance, what does happen when I first see a client who wants to know what his or her likely financial settlement will be?

The process that I follow is similar to that invoked by Mr Justice Mostyn who had no choice in S v AG. It is a basic, six-stage process in which I:

1. Elicit the relevant facts from the client. This may involve calling in our forensic accountancy team to analyse further publicly obtainable information while the client is at the office.
2. Broadly calculate the “reasonable needs” of the parties from the information provided.
3. Consider and explain the relevant law.
4. Apply the relevant law to the facts.
5. Give a ballpark view as to the outcome. (Obviously I can’t give the exact figure, because I’m not a mind reader of judges!)
6. Explain the procedure and potential timescale involved, and estimate the likely costs.

On paper, it looks to be a relatively straightforward process, designed to give the client an area to aim for and an understanding of what is going to happen, why and how.

In practice, it’s more complex. Sometimes there just isn’t enough information to go on from a first meeting.  In such circumstances, the client will be told what additional information is required, including valuations, financial data and so on. I will ask the client to come back with it so the outcome can then be considered in greater detail.

Furthermore, the law isn’t always easy to apply. For example, notwithstanding the relatively modest assets in this case, the law that Mr Justice Mostyn had to apply in S v AG involved:

• Distinguishing the matrimonial and non-matrimonial assets.
• Defining the applicable principles for sharing those classes of assets between the parties.
• Applying the Duxbury Tables to ascertain lifetime income requirements, which would be met by a lump sum out of the assets.
• Applying a cross-check of the fairness test.
• Applying (or, as in this case, disapplying) the “compensation” test.

Ultimately, Mr Justice Mostyn reached a figure for the husband that he thought appropriate to the facts of the case, having applied the relevant law. He found that the wife had shared in a lottery win as part of a syndicate and on the facts of the case, he regarded her win as non-matrimonial property and therefore not to be shared equally. He gave the 55-year-old husband (a kitchen porter who earns £12,000 per annum and lives in rented property) a lump sum of £85,000, which amounts to 20% of the assets. He left the rest to the wife who has remarried and has a similar income to her former husband. She owns her own home from the proceeds of the lottery win, together with another property in Colombia.

With great respect to the judge, was he right when he held the win was a non-matrimonial asset? As he also pointed out, even if a lottery win is judged to be matrimonial property, in law it still does not necessarily mean that the win should be shared equally. He mentioned Australian cases that went both ways. Even though the marriage was in turmoil at the time of the win, the parties were still living together, the ticket was paid for out of the family income (which the judge dismissed as irrelevant) and the couple did not separate for some years thereafter.

So why should the windfall, (which could as easily befallen the husband as it did the wife) not be simply treated as “matrimonial property”? Or if not, given it had been effectively ring fenced and not “mingled” during the marriage, should there have been a more generous interpretation of the husband’s needs, applying all the factors of Section 25 Matrimonial Causes Act 1973? Why shouldn’t both parties live out their retirement years more equitably and in greater comfort?

Back on terra firma, we solicitors are often expected to give a ballpark view sufficient for a client to rely upon, after only an hour with a new client. Not every solicitor undertakes this six-step process at the first meeting – but the truth is, I enjoy brain teasers! However this case does demonstrate the wide parameters that exist in many cases, even those which at first sight seem straightforward. I would have given the husband a more generous award out of what was ultimately a lucky win 11 years ago.

In English divorces when there are offshore assets, often held in offshore trusts, it is common for wives to meet with resistance when they try to find out information about those assets or trusts from their husband.

One way of remedying this is by issuing Letters of Request. These are letters from an English court to the appropriate authority (usually a court) in the other jurisdiction requesting information about the assets or trusts held in that country. The letter is written by your solicitors, who then apply to the English court for its approval and to request that it is sent. The English court can, and frequently does, amend the content of the letter.

After receiving the letter the authority in that other jurisdiction can choose to do three things:

• Tell someone (for example the trustee of a trust, or the husband’s accountant) to release the documents requested
• Make someone attend court in the other country to give evidence in person
• Tell the English court to effectively “get lost”.

Bermuda goes one way…

Over the last few years, Bermuda has acquired a reputation for being “trust friendly” by – amongst other things – rejecting letters of request out of hand.

The most famous example of this was in the case of Charman V Charman in 2005. The divorce’s financial settlement hung on a dispute over an offshore trust the husband had set-up in Bermuda.

The English High Court, and then the English Court of Appeal (after an unsuccessful appeal by the husband) issued letters of request to the Bermudian authorities, only to find that the Bermudian judge refused to order the trustees of Mr Charman’s massive trust (thought to be worth £67 million) to disclose any information.

When they heard that the Bermudian judge was refusing to budge the English courts described his behaviour as “somewhat churlish” and the decision as “rather parochial”.

However, the Bermudian courts, perhaps stung by this criticism, seem to have changed their view.  In the case of Sarah Felicity Jennings v Robert Albert Jennings, decided in December 2009, the Supreme Court of Bermuda decided that it had previously been wrong to refuse the English Court’s letters of request during the Charman V Charman proceedings. The Supreme Court concluded that the English Court of Appeal’s decision represented the correct law to be applied by the Bermudian courts when dealing with Letters of Request from English courts.

…And Jersey goes the other way

Historically, Jersey has been much more cooperative than other offshore jurisdictions when dealing with Letters of Request from English courts.

In the 2005 case of Minwalla v Minwalla [1 FLR 771] the Jersey Royal Court compelled the trustees of a large family trust to produce  information requested following a High Court decision in England.

The pendulum now seems to have swung the other way. In the Jersey Royal Court case of Deery v Continental Trust Company Limited and Peter Lawrence Watts, which was decided in January 2010, the Jersey Royal Court refused to grant the English court’s Letter of Request. The request was refused because the letter asked for disclosure of affidavits sworn by the trustees in separate Jersey court proceedings (brought by the trustees to ask for guidance in running the Trust).

The Jersey Royal Court said that if trustees thought such documents could be disclosed in different proceedings within another country, to someone who was hostile to the trust, they would no longer be “full and frank” in their disclosure to the Jersey Royal Court when taking part in proceedings about the running of the trust.

Constantly changing

The two recent decisions give an interesting insight into the constantly changing relationship between English courts and those of offshore jurisdictions.  The shifting dynamics provide a constant challenge to advisors when telling wealthy clients where it will be safest to set up an offshore trust.

They also go to show that you should never take a foreign court’s level of cooperation (or indeed non-cooperation) for granted.

Stowe Family Law is the UK’s largest specialist family law firm, with offices and divorce solicitors in London, Yorkshire and Cheshire.

With an outstanding national and international reputation, the firm provides a full range of private client family law services. Our divorce solicitors are praised by clients, the media and legal guides for their knowledge and expertise.

Marilyn Stowe and members of the Stowe Family Law team

Letter box image credit: Mike_Fleming.

“Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to s.1(2)(b) of the Act of 1973, even when defended, at an increasingly low level.

Stowe Family Law represented the successful husband in this case. The judgment of the Court of Appeal, heard before the President and given by Lord Justice Wilson, was handed down today. I will not of course discuss the specific facts of the case and nothing that follows does so. But, on a general note, Miller Smith is a useful example of alternative options available to deal with the financial problems caused by a defended divorce.

In such cases, finances cannot be dealt with in the usual manner, as the brakes are firmly applied until the divorce is out of the way, which could take a very long time. What is one party to do, who wishes to move on with his or her life and finds themselves apparently stymied?

Defended divorces are rare, and a practitioner will thus only occasionally come across the problem. But there is an alternative route in appropriate cases – the use of other law, such as section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and section 17 of the Married Womens Property Act 1882, to obtain an order for sale of jointly owned property, and section 33 of the Family Law Act 1996, to secure an occupation order of property.

The exercise of those options by the court is discretionary, however, and whilst the Court of Appeal in today’s judgment, emphasises that adopting the “holistic” approach within divorce proceedings is preferable, it also gives useful guidance on the threshold that has to be crossed for it to make these alternative orders.

What sprang off the page for me, though, is the quote above from the Court of Appeal relating to what seems to me a strongly perceived need for family law reform. The Court  has drawn attention to a dichotomy- a practice which has grown up over several years, where parties going through divorce are expected to try and resolve matters as sensibly and amicably as possible, yet obliged to throw mud for the process to conclude swiftly.

Current law in England Wales requires a marriage to have irretrievably broken down, if a divorce is to be obtained, and for this to be proved by one of five facts. Those (briefly) are:-

1. Adultery and the Petitioner finds it intolerable to continue to live with the Respondent.

2. The Respondent’s behaviour is so unreasonable that the Petitioner cannot reasonably be expected to live with the Respondent.

3. The parties have been separated for two years and both consent to a divorce.

4. The Petitioner has been deserted for two years by the Respondent

5. The parties have been separated for five years.

The only way of obtaining a divorce, therefore, without a wait of at least two years, is by alleging misconduct, whether by way of adultery or unreasonable behaviour. In the absence of proof of the former, the latter is almost always the chosen method of initiating a divorce, as statistics demonstrate.

But allegations of unreasonable behaviour in a divorce petition, starkly set out and frequently viewed as exaggerated or invented by a Respondent to a petition, are very unhelpful in setting the tone for negotiation of the issues that follow: namely children and finances. The Respondent will be inflamed, and may give instructions to fire off a cross petition, to put another side to a story, that no-one – least of all the courts – particularly wishes to know about and would prefer to be kept private.

So, in recent years, to avoid this and heightening the temperature of cases, the tendency has been to keep allegations of misconduct as minimal or anodyne as possible. It is considered good practice (The Law Society’s Family Law Protocol) where possible for practitioners to try and agree the proposed “unreasonable behaviour” with the other lawyers, and once this has happened a suitably sanitised petition is presented to the court.

Similarly, the Courts have adopted the practice of allowing, through such a petition, a much lower standard of “unreasonable behaviour” than some years ago, precisely to achieve the sensible aim of conciliation and swift resolution of the entire process.

But it does make a mockery of the current law, doesn’t it? Worse still, the present law doesn’t reflect what all but the tiniest fraction of divorcing couples,  practitioners and Courts are trying to achieve – a straightforward, low key, cost effective and amicable  settling of all the issues thrown up by a case.

And here I return to the principle of swift, “no fault” divorce, of which I am strongly in favour. I have a simple viewpoint. If parties can make up their respective minds to marry, then they may do so without ‘hoo hah’. Similarly, if they decide to divorce, they should be able to do so equally swiftly – with dignity and less cost and without mud slinging…and without expensive nannying either.

A problem arises where only one party to the marriage wishes to divorce and steadfastedly refuses to consent to it. It seems to me there should be a (rare) option, with costs risks – a fall back position that “in extremis” a court may make a decision based on fault. There could also be provision for financial relief, irrespective of a defended divorce. How that is to be achieved, however, is something for brilliant brains, specifically tasked with the job, and definitely not one for a day dreamer such as me!

Three of our trainees have recently qualified as fully-fledged solicitors. Liz Bell, Sarah Barr-Young and Eleanor Webster (left), together with Andrea Essen, Claire Glaister and John Moore, have launched a free “Legal Clinic”, which mimics the free legal clinics that I used to run. Every Monday evening they offer appointments of 20 minutes apiece, providing complimentary legal advice on family and matrimonial matters. The clinics have already proved very popular.

I enjoy a weekly session with the Legal Clinic lawyers, called Think Outside the Box. Over coffee, we discuss the advice given at the Clinic. Why was it the best advice? What were the choices? I like the younger lawyers in the team to consider situations from various perspectives, come up with a range of advice and choose the option that suits the client best.

This week, Liz Bell discussed her recent cases at the Legal Clinic. One case stood out; we discussed the advice she had given, and I suggested that she write a guest post. I hope that her advice – with which I concur – proves useful to readers.

The decision to see a solicitor following the breakdown of a relationship can be a daunting one. Even though the fear of a future alone can tempt a spouse to cling to the past, hoping that the situation can be resolved, it can also prompt a hasty decisions about the future. If this describes your situation then I can assure you, you are not alone.

A few weeks ago at our free legal advice clinic, I saw a client who was in a difficult predicament. She had given up a very good career to care for her young children, in the belief that her husband would provide for the household. Unfortunately difficulties had arisen in the marriage and her husband had left the marital home.

The client painted a picture of financial difficulties.  Much of her information came from her husband, and she believed everything he said. He told her that the house would have to be sold, and that he could only afford to pay limited child maintenance.

At the same time she still hoped that her marriage would recover, and that her husband would return. In a bid to resolve her situation and appease her husband, she had already agreed to put the family home on the market in the hope of a quick sale. She thought that when the financial pressure eased, perhaps her husband would return.

The assets in this case were modest. If the wife moved out without any income of her own, she had little prospect of owning a house in the future. Instead, she could find herself spending what little capital she had in order to pay her rent.

Although I had every sympathy for this client, I had to give her the full range of legal advice. I advised her about issuing divorce proceedings, applying for interim maintenance and thereafter a full financial settlement. However, I advised her to do nothing immediately. I suggested that she stay in the house and make a decision about the future of her marriage.  I advised strongly against selling the house before that decision was made.

Unfortunately this lady could not see beyond the sale and the possible reconciliation. She was disinclined to consider her options with an eye to the future.

In six months time, if her husband does not return, she may well find herself regretting the snap decision to sell the house. By then it may well be too late.  The husband will have moved onwards and upwards, while the wife struggles to survive on a pittance.

During my training contract I was often involved in cases in which clients were eager to settle at an early stage, without really looking to the future. They feared incurring legal costs or upsetting their spouse or children.  They risked entering agreements without full and frank disclosure, or accepting a deal when they were entitled to more.

In such situations it is extremely important for clients to take legal advice. A solicitor will not be blinded by the emotional trauma of the marriage breakdown, and  will consider the consequences of  decisions that will affect the rest of the client’s life.

It is so difficult to separate  emotions from practical decisions, and it is commonly said that the breakdown of a relationship is like bereavement. People go through a huge range of emotions including denial, anger and shock, but eventually they will accept. It can be dfficult to make practical decisions during such an emotional time. It takes time to recover and there is a lot to be said for a “cooling off” period, during which parties can readjust before making important decisions about their futures. The rawness of emotion after a relationship breakdown and the attachment that clients still feel towards their spouse or partner can often inhibit clear judgement.

My client was surprised that I had advised her not to make a decision that focused only upon the short term. However, short-term options are not always the best options long-term. She was pleased that we were not trying to push her into court to “make money.” She decided that she would take some time out to think about what she was going to do. Ultimately she may return. If she does, it will be on her terms and not because she has been bullied when she is so obviously in an emotionally vulnerable state.

Liz Bell qualified as a solicitor in 2009 and is a valued member of the Stowe Family Law team.  She has already had wide experience in cases involving trust elements, company interests and foreign assets. Popular with clients and counsel, Liz brings a personal and friendly approach to her work, along with a keen attention to detail.

Divorce or destruction? When relationships reach the bitterest end

Ending a marriage is never easy – but what happens if the man you once thought was the love of your life turns out to be your worst enemy? Anna Moore looks at the devastation that can be caused when divorce gets messy…

Though Caroline Spencer may be baffled and bewildered by her former husband Earl Spencer’s behaviour during their divorce proceedings this summer, there will be other ex-wives across the country feeling a sorry shiver of recognition.

First, the earl woos and marries Caroline, telling the world, ‘I’ve found somebody I respect and love and I feel deeply happy.’ Then the couple settle into an enviable life, dividing time between their canalside home in Northwest London and the Althorp estate in Northamptonshire, where Caroline soon makes her mark with an annual literary festival.

After the birth of their son, Ned, Caroline declares herself ecstatic, telling one journalist that every day she feels ‘blessed’. When asked about the earl’s track record – his previous messy divorce which ended amid accusations that he was a ‘callous adulterer’ – her reply is unequivocal. ‘I can’t think of anyone less callous,’ she says. ‘Strong, determined, all of those things. But never callous.’

Words that must haunt her now.

Continue reading »

Some spouses go prepared.

A Financial Dispute Resolution (FDR) is a court appointment during which a divorcing couple can be helped towards a financial settlement. I usually welcome these hearings, but with new costs rules in place I have noticed an uncomfortable trend.

A typical FDR proceeds as follows. After an application has been issued to the court and formalities such as financial disclosure have been complied with, the parties are given the opportunity to settle the case on a “Without Prejudice” basis, similar to mediation.

A judge hears the parties in a courtroom – in most cases, this is a small private room – and attempts to effect a settlement. The parties are not called upon to give evidence, but listen to the arguments advanced on their behalf. The judge will have read the details of the parties’ respective positions beforehand. The judge indicates how the case is likely to play out, and the parties then go away to try and reach an agreement between themselves.

A successful outcome means that a couple can walk away from court ready to begin new lives. An unsuccessful outcome means that the case continues. When this happens legal costs will mount and several months later, a battle will be fought out in court. The cost, stress and worry of such a battle should never be underestimated.

However the pressure to achieve a successful outcome, together with the new rules requiring each party to pay their own costs, have become useful weapons in the unscrupulous spouse’s armoury.

It is worth bearing in mind that because judges are accustomed to an adversarial system, they don’t always approach FDRs as mediators. Many judges are excellent; however, if a judge does not use his or her skills to persuade the parties to negotiate, or to issue wake-up calls when necessary, a FDR can be a fruitless and expensive waste of time.

I am also beginning to think that in some cases, judges can be a little naïve when spouses decide to play to a dirtier game. This can happen when a wealthier spouse – and let’s say it is the husband, because it often is – makes his wife a deliberately low offer. For example, he may try to obtain a clean break rather than an agreement to pay maintenance, even when a clean break would be a highly unlikely outcome in court.

He knows his offer is too low, but he believes that he has little to lose. He can either force his wife into accepting the offer, because she is terrified about her mounting legal costs and the length of time it will take for the court hearing to take place, or he can force her to litigate and realise all those fears. If she litigates and he is ordered to pay her a greater sum, the only downside is his increased costs – and let’s remember, the wife still has her own bill to pay. For her, it can be a crushing defeat or a pyrrhic victory; for him, it can be a gamble that he is prepared to take.

As the economy goes from bad to worse, I have observed an increased number of such “gambles”. These can pose problems for judges. After all, faced with a commercially-minded, hard-headed litigant who is determined to push the other party into a corner, what can the court do? Very little, it seems. The court can merely conclude the FDR and make orders for the case to head for a final hearing.

In one case that I observed recently, the husband pulled this trick and the judge responded with a fruitless attempt to find some middle ground. But this middle ground suited no-one: the husband wouldn’t countenance it, and it came nowhere near what the wife was seeking. The judge did not give the husband the “hard word” to encourage him to move towards a financial settlement. So the husband left the court as he entered it: intending to take the case to a final hearing if necessary, but convinced that his wife will settle with him beforehand.

There are those who would argue that costs consequences may still arise if there is a failure to make sensible open proposals. However, Judges are more likely to regard this as an exceptional course of action rather than the norm.

If you are heading for a FDR, I wish you well – but please be aware of these potential pitfalls. When these hearings work, they work extremely well. However, it does concern me when spouses attempt to “game” them in the way that I have outlined above. In my opinion it is a failing of the system that needs to be remedied.

I often see clients who are looking for second opinions on their cases. Many of them have started off with local solicitors, or solicitors they have known for many years. Typically, such a client had been brimming with confidence at first, and had been assured that family law was straightforward.

After a few months, however, the client will have found themselves no further forward in their divorce, and cannot see a way out. Frequently the only practical advice given to them is, “let’s look at a settlement when we know the whole picture”. Bogged down in paperwork which purports to give “the whole picture” when it doesn’t, they begin to despair. The solicitor remains reluctant to give advice about what settlement should be in the offing. With the process dragging on, costs are mounting.

I don’t wish to blow my own trumpet, but family law is much more complex than it may appear to be at first sight. I make this point to lawyers rather than clients, because lawyers tend to think it is a relatively easy field of law. It isn’t.

I met one such client this week. He has been having sleepless nights and fears that there will be nothing left after his wife – whose solicitor certainly knows what he is doing – has finished with him.

So what goes wrong? In my opinion there are two important factors, which people should know about before – rather than after – they embark on divorce proceedings.

Firstly, I think a competent solicitor should be able to give a good steer at the very first meeting, having extracted all the relevant information about the client and the factors that a court will take into account. The solicitor should be able to provide details of outcomes in similar fact cases and the likely outcome therefore for the client.

I’m not a fortune teller, but I can advise about what is likely to happen in most cases, usually with the parameters within which I think the court will make its decision. Even in the most complicated cases, with the most complicated of assets, it is possible to advise a client about the likely outcome of a split. I will also provide an estimate of the likely costs of the case.

This is advice that clients need to know – however difficult it is to give.

Clients want to know about likely outcomes and costs, and they want reassurance. What they don’t want is to be fobbed off. If a solicitor cannot provide this advice – even when it is qualified within a range of parameters – I don’t think that he or she should be advising the client in the first place.

This is why in my offices, even though I don’t deal with the routine day to day issues on clients’ files, I will usually see each client first. This means that I can advise, guide, direct and review every case’s progress. This approach ensures my input until the case is resolved – but also ensures that legal costs are contained.

Secondly, I don’t understand why some solicitors don’t advise their clients about financial proceedings as soon as they can. If the solicitor is acting in the client’s best interests and it isn’t one of those exceptional cases where the parties are in close agreement, this should be a no-brainer. The court doesn’t regard it as an aggressive stance, it keeps costs contained and it timetables the case so that the end is in sight.

However, many solicitors prefer “voluntary disclosure” as the way to go. They believe – wrongly, in my opinion – that it will keep clients amicable. I disagree. It shifts power towards the party who has no wish to reach a swift conclusion, – and in these recessionary days, such an imbalance of power can become all the greater. It has no “teeth”: a party refusing to play ball, who wishes to drag out negotiations, need not produce full disclosure because there is no court sanction. On occasion, some solicitors are even prepared to advise clients on the basis of disclosure which is unsworn and therefore, in my view, should not be relied upon. This means that when and if negotiations break down, the entire process – or most of it – will have to begin again, under the auspices of the court. Costs climb. So what is the point?

I can more or less guarantee that when a second opinion is sought, it is a direct result of one or both of the above.

Or, as we lawyers put it, the “Objective of the Court in financial arrangements is to achieve an outcome which is fair”

Two round trips to London in the lasts seven days has involved two 5am starts, four train journeys, and a stimulating but challenging work schedule in our vibrant capital.

I enjoy London very much- particularly the buzz of the lawyers rushing up and down Fleet Street and Chancery Lane into and out of the nearby courts offices and barristers chambers. I love the wine bars and coffee houses the lawyers gather in and above all I am fascinated by the history of this glorious city, still obvious in the “old world” buildings and street names. As a lawyer I’m so proud to take part in this daily spectacle, but also very glad to be able to escape back to the hills of Yorkshire to breathe the fresh air and saturate the sight of the cherry blossom during an hour’s early morning run on the lush green “Stray” in Harrogate, before starting work at Stowe Family Law in a former Victorian Court House, overlooking another tiny, but pretty park.

As a young girl at the beginning of the 20^th Century, my late granny would holiday with her granny to “take the waters in Harrogate, which was renowned for being a famous spa. More than a century later, my granny and great, great granny, would no doubt be thrilled to know I love Harrogate as much as they did!

But back to London. One reasons for my trip, was to have a conference with James Turner QC, James Turner who enjoys an enviable reputation in family law but also in criminal law, at his prestigious chambers at 1 Kings Bench Walk. The clerks are very welcoming, their hospitality was brilliant. Unfortunately it was boiling hot, and the air conditioning wasn’t working too well, and certainly nowhere near as well as Mr. Turner’s brain!. He was advising my client in a family matter and it was a very interesting conference. He demonstrated not only brain power but genuine empathy with the emotions of the particular client.

This week I also came across a reported case of B-v-B (2008) EWCA Civ 543, in which James Turner appeared for the appellant wife. This too is an interesting case because the Court of Appeal has been considering the issue of “fairness” and taken this opportunity of expounding “fairness” in the context of recent law which to many lawyers since 2000, with the often misunderstood decision of the House of Lords in White –v- White, has been more about “equality” as a starting point in terms of division of the family assets and thus a demand for 50/50 share irrespective of the factors contained within s25Matrimonial Causes Act 1973, which might mitigate against equality.

In B-v-B, the wife had provided all the capital of the marriage. She had a substantial inheritance. The husband was from Kosovo and had no assets. The couple married in 1991 and had a child. For the first seven years they lived off inherited capital which was used to buy the home, the husband did casual work to help the family budget. The wife also gave the husband capital to set up a car wash business which prospered. The Court of Appeal had to consider whether it was fair in the context of a long marriage, to share the assets equally. They held it was not. They also held that achieving fairness does not mean in every case there should be equality. Lord Justice Wall made a point which he specifically directed at a wider audience than the parties in the case.

He referred to the relevant passage in Lord Nicholl’s judgment in the leading case of White –v- White 2001 1(AC) at p 604, about “fairness” and stated that the court’s objective is to achieve an outcome which is “fair” Further more, “equality” is not a starting point for division of assets. It is rather as per Lord Nicholls, a “cross check” and, as such, equality may be departed from if there is a good reason for so doing. In this particular case, the provenance of the assets would not be disregarded.

I welcome this. I have been involved in recent cases, where “the opposition” has taken the firm line of 50/50, and no negotiation. I don’t think it is as simple as that, and there are occasions when 50/50 cannot be fair. As Lord Justice Wall said, one of the frustrations in family law, is that no two cases are ever the same. He said it is also one of the fascinations, and he is right. It makes the job if advising a client that much harder. It is a matter of good judgment.

Last Friday, the Law Society issued professional guidance into the conduct of a first interview. Designed to assist the lawyer to give the best advice to the client, the guidance requires a client attending the first interview to be advised both at the interview and in writing of the issues involved, the costs of the first interview and the costs thereafter, the firm’s complaints procedure, money laundering requirements and so forth. It is comprehensive and I suggest all practicing solicitors (if they haven’t done so already!) and any new client about to consult a solicitor should read it.

In practice, I find above all, a client is seeking reassuring advice about how the case is going to progress and what the likely outcome will be. I noted quite wryly from examples given by Lord Justice Wall, that lawyers were having the same problems identifying the outcome to a client in the 1970s’, through the 1990’s as they are today. It is all a matter of judgment.

Having said that, is it so hard? Understanding and applying s25 MCA is the key, and applying each factor to the facts of each case, looking at contributions and needs, usually results in a ball park answer. Cross check against equality – is there reason to depart from equality? Does it look about right? And it probably is.

I don’t think the ability to give this type of advice is easily learned. It takes years of experience, years of involvement in different cases with differing facts and all with differing outcomes. The answers aren’t always obvious. They will often require much thought, skill and argument to be successful.

In summary, if you have glibly or flat-footedly been advised that the outcome is “a predictable 50/50 split” and you aren’t happy, my suggestion is get a second opinion. It could be well worth the extra cost.