International Women’s Day

Certainly, the stress and pressure of juggling work and family can exact a toll. My attitude, when my son Ben was growing up, was that here was a battle to be fought and won. I was also acutely aware that I was exceptionally fortunate; not just because of the support I received from my husband and others, but also because of my stable home life. There are other women who do not enjoy such privileges. Perhaps their families were unplanned; perhaps they go out to work but still find it difficult to make ends meet. And what about the woman who, instead of receiving support from her partner, must endure continued violence?

When this family law firm was first founded, more than 25 years ago in a converted cobblers’ shop in Leeds, I took on legal aid clients and worked with many such women. Back then, divorce favoured men and the female clients who came to me were in truly desperate situations. It’s a reason why I built my firm: a woman representing women. My female clients were often mothers of several children, victims of domestic abuse, or had been deserted by their husbands. And yet I found that the abused women would frequently return to their husbands, because they and their children had nowhere else to go and there was insufficient provision and protection for them by the law.

It was a long time ago now and the provision for abuse victims has since improved. However I was reminded of those old clients when I read a letter from Judith Timms in The Times this week:

Her letter highlights the shameful events that are taking place in our country right now. Is our Government becoming defined by its rank hypocrisy? Legal aid ensures that the most vulnerable and needy in society are given access to justice, and regular readers know my thoughts about the proposed cuts to legal aid provision.

On International Women’s Day, leaked documents showed that Britain is trying to “water down” an international agreement to protect women against domestic and sexual violence. Our Government is arguing that violence against women should not be regarded as a violation of human rights, and that the draft agreement should apply only in “peacetime”.

Has Britain, once a champion of women’s rights, substantially diluted its support?

In her letter to The Times, Judith Timms also focuses upon the proposed redefinition of domestic violence:

“The definition of domestic violence is to be so tightly drawn that it will include only cases where there have been criminal orders of non-molestation or occupation, and these are a very small number of the total applications.”

The narrowed definition of domestic violence will, effectively, save the Government money by locking vulnerable women and their children out of the legal aid system.

Could this be the reason that the Government is unable to sign up to the original deal negotiated at the Council of Europe? Are desperate women are to be placed at risk as a cost-cutting measure? If so, isn’t it shocking?

Access to the courts and the help of skilled lawyers has, over the years, helped protect and keep safe thousands of the most vulnerable members of our society. Judith Timms concludes that if the Government proceeds with its plans, decisions may be made that do not reflect the risks faced by victims of domestic violence. In my opinion, that is an understatement.

I have blogged countless times about my fear that family law is set to return to the Victorian era. Now it is Dickens’ horrible tale of Bill Sikes and Nancy that comes to mind.

Image credit: Bill Sikes by Fred Barnard.

In an interview with Frances Gibb of The Times and published today, Sir Nicholas Wall notes:

“Women cohabitees, in particular, are severely disadvantaged by being unable to claim maintenance and having their property rights determined by the conventional laws of trusts.”

He went on to add:

“The majority of people don’t understand that living together does not give them any financial protection should the relationship end…which leaves countless people vulnerable.”

It is a controversial subject but my own views on it, which are already known to regular readers, are summarised in the following posts:

Cohabitation: know your rights and the law

Cohabitation and our cowardly lawmakers

Why I disagree with Baroness Deech and her views on cohabitation

In 2007 I was a member of the Legal Advisory Group to the Law Commission, which called upon the Government to give new legal rights to cohabiting couples. Sadly these recommendations appear to have fallen upon deaf ears. Years later, there is still no sign of law to cover cohabitation breakdown. During this time, the number of cohabiting couples has continued to rise and the common law marriage myth has continued to prevail. According to The Times, a sixth of couples in Britain now live together and do not marry – but more than half believe (wrongly) that they have legal rights as “common law” spouses.

I have previously described Sir Nicholas Wall as the herald of family law reform. Is he a harbinger for cohabitation rights? At the very least, the backing of the most senior judge in England and Wales is set to “fuel the case for reform”. It’s welcome, given the stalled progress in government so far. We are told by the Ministry of Justice that an announcement will be made by the Government in due course. Saying what, I wonder? Will they fall for the extreme anti-cohabitation and pro-marriage views, which blindly ignore the genuine hardship encountered by those cohabitants who do not have the protection of family law and are left in dire straits?

The opposition to Sir Nicholas Wall’s views today in the media is focused firmly on the specious argument that to introduce cohabitation law would devalue marriage. I appeared on BBC Radio Five Live to counter these arguments against a representative of the right wing Centre for Social Justice. Later on Channel 4 News I watched Dr Catherine Hakim of the LSE, who is also opposed to such legislation on what again seemed to me to be purely intellectual grounds. Sadly, she didn’t seem to have a clue about real-life families. That is unsurprising, given she isn’t a lawyer who has to turn away distressed people without a remedy in law for the hardship they have to endure, who are homeless, penniless and thrown onto the State, perhaps after a lifetime’s relationship which has ended in turmoil.

Those with such uncompromising, stridently expressed views completely miss the point. In the 21st Century, with so many social changes having taken place, the argument is no longer about being married or not. It is not about devaluing marriage. It’s about legal regulation of families, all of them. There should be no lacunae in our law.

We no longer have two children, two parent families with non-working mothers and working fathers as the norm. There are too many permutations to list.

Family law should regulate the family, irrespective of marriage. Married families are but a small percentage of today’s families. Family law is surely designed to protect individuals within the family, to ensure fairness for the weaker party and the children.  Marital status is irrelevant.

Like it or not, there is a very large elephant in the room. Cohabitation is here to stay as part of society’s multi-faceted family and, whether or not we wring our hands with genuine regret at the demise of the simple married family, our law must cover all the families in this country. This is not least for the sake of the children, who should never be regarded in law as second class. We simply can’t have our judges dealing only with decreasing numbers of married families, unable to deal with growing numbers of unmarried families of all different types, sizes, hues and orientations.

So all credit to you, Sir Nicholas: all those people who have a right-minded concern for those in real need of social justice are rooting for you! Keep up your much-admired efforts, and please continue to demonstrate how our judiciary have a very real social conscience – despite all the hand-wringing from those who really should know better.

This is an expanded version of my latest Family Business column in Solicitors Journal.

Darkness is cheap

A family solicitor’s Christmas Carol, by Marilyn Stowe

Christmas is now upon us and another year has flown by. Last night we sat in our little “snug room”, watching the snow fall outside and musing upon the past 12 months. My husband is a fellow solicitor and the head of a legal aid practice. When I asked him to forecast what might be coming in the next twelve months, he didn’t think twice.

“Most likely there will be savage cuts to the legal aid budget: crime, mental health, family… Who knows how bad it will get.”

His firm is nearly 30 years old. I look back through time and remember the unrelenting work that my husband and his partners (including me) have put in over those years, to build a practice that serves the poor and needy of Leeds. Things were different then. I could get an emergency legal aid certificate and an order removing a violent husband from his home in the local Magistrates court, serve it on the husband myself and lodge a copy of the order at the local police station. All done in a day, and all done cheaply with the minimum fuss and red tape. Fast forward to the present day, with a legal aid system now steeped in layer upon layer of costly bureaucracy and paper pushing, with the resultant increased costs, so that all that work could count for nothing. His firm, along with many others, has been granted a temporary reprieve courtesy of the Law Society, which stepped in to defend its family legal aid practitioners and halted the LSC in its tracks. However this is not the end, but the beginning.

It feels very much to me as if we have Mr Scrooge in government, saying: “Legal aid? Bah humbug!”

In truth, family law as we know it is primed for radical change. Lord Justice Wall recently described separation as a “serious failure of parenting”. An economist heads the Family Law Justice Review. The Centre for Social Justice, founded by government minister Iain Duncan Smith, sends out dire messages about holding marriage together at any cost as the answer. The signs are not good. Any system of law can be improved and ours could certainly do with tweaking, but who, ultimately, would benefit – or suffer most – from an extreme overhaul?

Speaking to other solicitors, I find that I am not the only one filled with foreboding. I expect that if A Christmas Carol: The Lawyers’ Edition was in the offing, with Kenneth Clarke, George Osborne or even our own Prime Minister as Scrooge, there would be plenty of competition for three of the plum parts: the Christmas Ghosts of Family Law Past, Present and To Come.

Looking to the past, I recall vividly the fiasco of the 1996 Family Law Act. The then government tried, with the best intentions in the world, to introduce divorce reform based on trying to hold a dead marriage together. It failed. For 16 years, successive governments didn’t dare go near the subject again. Now, with cuts at the top of the agenda, ministers have family law firmly within their sights once more. Does more of the same lie ahead?

As the Ghost of Family Law To Come, I would shift the focus to the “ordinary” couples who make up the bulk of most solicitors’ caseloads. Cases involving the wealthy have made the headlines this year, but “resounding” decisions such as that in Radmacher v Granatino will only ever affect a small number of the population. Instead I would show our Ebenezer Scrooge what happens to families, especially children, when couples whose marriages have ended are forced to stay together, forced to witness fight after fight and think it is all normal; when vulnerable spouses are forced to settle for pitiful amounts because they can no longer afford – and are no longer permitted – to fight for justice. And what if, solely to save money, couples are forced to resort to tribunals with rigid rules and no discretion? Haven’t we had sufficient experience with the Child Support Agency to know it could all end up as a disaster?

As my husband said, we will have to wait and see what happens. Dickens’ Christmas Carol ends on a high note, after all – and in this Lawyers’ Edition, the final chapter is not yet written. It would be good to see the retention of the flexibility built into our ancillary relief legislation, along with more emphasis on discipline within the courts in children cases. It would be good also if Mr Scrooge finally realised that cohabitation is here to stay, and introduced law for the thousands of disadvantaged cohabitants and their children. Now that would be a happy ending.

In the meantime, I wish all my readers a Merry (and humbug-free) Christmas.

Marilyn Stowe is the senior partner at Stowe Family Law. She blogs at www.marilynstowe.co.uk.

“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!

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.

However if you have only been together for between two to five years, the surviving partner would get just half of what a married spouse would get in the same circumstances.

I have some questions:

1. Do the proposals go far enough? There is little doubt that they are a step in the right direction. However it remains to be seen if our Government is brave enough to implement changes to the law that, to some, may appear to undermine the sanctity of marriage.  Let’s not forget its decision to shy away from the proposed reform to the law for unmarried couples in the event of relationship breakdown.
2. For how much longer can the changing nature of relationships within our society be ignored? I believe that with increasing numbers of us choosing to cohabit either before marriage or instead of marriage, the law requires reform and fairly rapidly.

The current consultation closes on 28 February 2010 and further details of the proposals can be found on the Law Commission’s website.

By the way, it can also be argued that the existing law for married couples is deficient.  Contrary to popular belief, spouses do not automatically inherit all of their deceased spouse’s estate.  For example, if the estate of the deceased spouse exceeds £250,000, the spouse will only receive the first £250,000, the deceased’s personal items and a right to an income from half of whatever is left.  The children will receive the remainder.  This can often lead to inequitable and unfair results for the surviving spouse – and can also result in financial hardship at what is already a very difficult time.  This, however, is another topic for another day.

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

Climber image credit: Marcus_76.

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.

In other countries, a pre-nup is usually drawn up by the wealthier partner so that his or her legal obligations can be dispensed with. It is a gun to the head at a time when the future spouse is emotionally unfit to negotiate a commercial bargain. Thus pre-nups cannot be compared to commercial contracts, negotiated at a distance by willing parties who each stand to benefit equally from the agreement.

At present, pre-nuptial agreements can be upheld in this country – but importantly, judges aren’t legally bound to do so. Reverse this balance, and it will be for the poorer spouse to mount the challenge. In the US, unscrupulous spouses can insert clauses into these agreements to ensure that if a challenge is made, the payment is immediately reduced to nil. In such circumstances, the poorer spouse can come away with little or nothing.

Here in England and Wales, a pre-nuptial agreement is likely to be upheld if it is properly drafted with full disclosure, with both parties receiving sound legal advice before signing. Legislation isn’t necessary.

So why spend time and money on this review? Beats me – particularly as any proposed changes would not become effective until 2014 at the earliest!

Instead, Prime Minister, why don’t you do the right thing and introduce legislation to help millions of cohabiting couples and their families? The Law Commission put forward its proposals last July; the legislation is ready and waiting for your draftsmen.

This would be a courageous landmark decision on your part and it is desperately needed. Only this week, I had to advise a woman with a family that her remedies in law were almost non-existent. Like other family lawyers, I am encountering such cases with increasing frequency.

Please assist these people. We can’t stop people living together – but with reforms proposed for pre-nuptial agreements, it appears that the Government is only going to help the “haves”. What about the “have-nots”?

Yours sincerely,

Marilyn Stowe

Senior Partner, Stowe Family Law LLP.

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. As I’ve noted previously, the Child Support Agency is unfit for purpose and has left millions of devastated people in its wake. These new proposals appear to be clumsy attempts to “patch” its failings, rather than to address the wider problems that continue to exercise a stranglehold upon that blighted organisation.

The plans are also a clumsy attempt to raise revenue via the CSA from named fathers. How exactly women will be compelled to disclose the name of the father is one obvious stumbling point. They fail to address the highly complex situation where – with the mother’s support – the father does not wish to acknowledge parental responsibility.

In my opinion, they are a smokescreen for the inadequate legal remedies that are currently available to unmarried parents. Marriage provides a safe and secure framework to support children. However, when couples simply live together or have children and are not married, the law is glaringly deficient.

The Government needs to stop tinkering at the edges and to bring forward laws that tackle the unnecessary challenges faced by unmarried couples.

Note: This blog receives lots of queries related to the Child Support Agency (CSA). Unfortunately, because of the complex and labyrinthine nature of CSA processes and rules, such questions often call for lengthy and long-winded answers. For this reason, it is difficult to answer such queries on an individual basis.

If you are seeking advice about a situation that involves the CSA, perhaps these earlier posts will help. If your CSA-related query is of a pressing nature, I recommend that you contact the National Association for Child Support Action: a hardworking organisation that can provide ongoing assistance, advice and support.

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! Why such fright? Despite the promise that marriage is for life, a married couple can still go to court and end their marriage. When this happens, the law will uncomplainingly adjudicate and resolve all issues between husband and wife.

So what’s so much worse about legislating for cohabitation? We can’t pretend it doesn’t exist. Tens of thousands of couples are cohabiting. My firm is only one of thousands throughout England and Wales – and I can guarantee that at least one cohabitation breakdown is dealt with in my office every day.

Marriage is going out of fashion. As fewer couples decide to marry, and fewer couples divorce, an increasing number of couples live together. There are, conveniently, no statistics for cohabitating couples whose relationships end.

Legally, married couples cannot divorce before arrangements for any children are first agreed. Yet tens of thousands of children never come before the court because their estranged parents were never married.

If we are so concerned about the children of divorced parents, why are children of cohabiting families thus condemned as second class citizens?

I have been involved with the proposed changes to the law, in my capacity as a member of the Advisory Group to the Law Commission. I know that radical legislation which equates cohabitation with marriage, is not proposed. Instead, the Law Commission recommended very moderate, limited legislation. It would obtain some form of justice for the tens of thousands of cohabiting couples, from all strata of society, who encounter problems on the breakdown of their relationships. It wouldn’t be a charter for ‘loadsamoney’, but would recognise economic loss caused by the relationship and would make awards accordingly. It happens in every other area of civil law.

People caught up in the mess of a breakdown are crying out for help. As they attempt to pick up the pieces of their lives, can it be right that our answer is, “Told you so- you should have got married?” Why force people to do something they don’t want?

Some of those who live together do know that there will be few – if any – comebacks if the relationship ends. However, many couples are not bothered about the consequences, irrespective of whether a child is born, because of the popular misconception that “common law marriage” exists.  Then they find out that the law can help married couples and same sex couples – but not them.

I would bet that the majority of Middle England has cohabited at one time or another – including my husband and me, before we did decide to marry!

Why is there no-one in Parliament with the stomach to push this change through?