“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.” – Wilson LJ in Miller Smith –v- Miller Smith 2009 EWCA 1297

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?

Continue reading »

I have a personal interest in the Law Commission’s proposals to revamp the law for cohabiting couples, which would give cohabitees the same rights on death as married couples. As a cohabitee of almost six years, who has only recently agreed to make an honest man of her partner, would I be better off “living over the brush” – or is marriage a safer place to be?

The answer is clear.  As the law currently stands, unmarried partners get nothing if their partner dies without making a will.  A lot of people find this very surprising.  What is even more surprising is that the length of the relationship or the existence of children makes no difference. Surely if you have been together over 20 years and have five children together, you would be entitled to something?  I am afraid not.  If one partner dies and the surviving partner wants to challenge the lack of provision for them, they face protracted and costly litigation under the Inheritance Provision for Family and Dependents Act 1975. There is no guarantee of success.

Under the new proposals, couples who live together for more than five years or who have children together will be treated as if they are married, if one of them dies without making a will. Continue reading »

An open letter to Rt Hon Gordon Brown MP, Prime Minister.

Dear Prime Minister,

Joshua Rozenberg interviews the Chairman of the Law Commission in today’s Daily Telegraph. Three family law matters are touched upon: reform of ancillary relief law, pre-nuptial agreements and cohabitation law reform.

I note that there will be no reform of the law in relation to the division of a couple’s assets. The courts will continue to apply the Matrimonial Causes Act 1973 and I’m pleased about that. As a family law solicitor, I approve of the discretion given to the judges: it helps couples across the country who don’t have “big money”. I am very much against the equal division of assets as in other countries, because there are occasions when 50:50 cannot be fair. No two cases are the same.

I also note that the Law Commission will be examining the legal status and enforceability of pre-nuptial agreements. I can’t think why valuable public resources are going to be spent helping the very rich to protect their assets. Continue reading »

  The law needs changing – the Government must do more than tinker at the edges

Although I believe that the increased number of unmarried couples has created problems that are not covered with existing legislation, I was startled to learn that the Government has unveiled proposals to make unmarried mothers declare their children’s fathers on birth certificates.  

At present, only children born to married couples must have a father’s name entered on their birth certificates. When a mother and father are not married, the naming is at the mother’s discretion. Every year nearly 50,000 babies – seven per cent of the total – are “sole-registered”, with only the mother’s name on their certificate.

The new proposals are described by The Daily Telegraph as follows:

Mothers will be forced to name their child’s father on birth certificates for the first time under Government plans which will improve collection of child maintenance from absent fathers.

The 45,000 mothers who leave the father’s name blank when registering a birth each year will have to identify him unless they can prove it is “impossible, impractical or unreasonable” to do so.

Once a name is given, the potential father will be contacted and ordered to register or submit to a paternity test. If a DNA test is positive, the man’s name will be recorded on the child’s birth records.

Fathers who deny paternity, but do not undertake a DNA test, will face potential fines.   

Speaking as a family lawyer, I’m less than impressed. Continue reading »

Cut the red tape: why won’t politicians help cohabiting couples?

I saw Baroness Thatcher on TV three times this weekend. I saw her twice on the Spitting Image reruns and laughed at the satirical takes on the absolute power she wielded over her fellow politicians. Then I saw her on the news, aged 82, leaving hospital. She was clearly very frail, but determined to walk unaided, despite her age and infirmity. Agree with her politics or not – and sometimes I did not – her spirit and fearlessness remain admirable.

Following last week’s debacle over cohabitation, I wish that our present leaders had such backbone! More than ever, I am convinced that in its dying years, our Government has become bogged down in red tape and paper-shuffling.

We have learned that the Government won’t be changing the law for cohabitants. Plans to do so are being held “in abeyance” while we wait and see how the Scots fare. This is because the Scots, who certainly don’t defer to opinions expressed in English media, have already changed their own law.

The message from Whitehall is, as usual, wrapped up in bureaucratic jargon and more red tape. Now taxpayers’ money is to be wasted on a futile “comparison” exercise; after that, I suppose, the subject will be quietly put to bed.

For goodness sake! Continue reading »