How many parents really understand what their children want and what they need?

Perhaps it was my reaction to the McCartney divorce that prompted me to take some time out for a week’s vacation with my son. At the request of a journalist, I had been considering what Beatrice McCartney’s feelings may be if, when she reaches an age to understand, a kind “friend” shows her a copy of Mr. Justice Bennett’s gruesome judgment of her mother. At the very least, it could cause her a lot of pain. And how will her psychological development be affected by such turbulence within her family?

People talk a lot about the impact of divorce on children. Even so, when I listen to some of them, I have the feeling it is only lip service. How many parents really listen to their children, to try and understand what they want and what they need?

I am not divorced myself, but I do have a child. On an impulse, I decided to whisk my son away to the heat of the desert in Eilat, Israel for a week. I hoped to find out how he was faring in his student world. He has certainly been working very hard. As it turned out, he wasn’t the only one with plenty on his mind.

It certainly appears that university life is as stress-filled as I remember it. Thousands of students, my son included, are currently waking up to the inescapable fact that exams are only a few weeks away. Like my boy, they are fending for themselves in rundown student houses that could do with some deep cleaning. They have to do their own shopping, washing, cooking and ironing, manage their own budgets and pass their exams. They also have to manage their relationships with others. Like many at university, my son has a girlfriend – whom he adores.

For much of the week my son and I lived in different time zones, even though we were staying in adjoining rooms! Every day I got up very early, so that I could go for a run before the heat made it impossible. I loved the desert, the mountains and the sea. I loved the wind, blowing in off the sea.  I got to wave to people running along, trying to cope with temperatures in excess of 30°C. I enjoyed fantastic Israeli dairy and fruit-filled breakfasts, and went to cycling classes run by a muscular Russian woman, whose favourite phrase was “Sprint!” I walked all over the place in the afternoons and felt wonderfully, physically fit.

My son’s girlfriend was in the USA, and he talked to her on his computer long into the night. So he never got up before noon, and spent most of his afternoons studying in his room. In the evenings we met up for dinner, and chatted over some wine and good food.

As I discovered, he had a lot of questions. What makes a successful relationship, he wanted to know? How do you know that a relationship is going to work out? If a relationship feels good, how do you know it will feel good always? What’s the secret?

I don’t know if there is one, “catch all” reply, but I gave his questions a lot of thought. As I was running along one morning, grateful that the wind had dropped and that the sun had only just begun to show over the horizon in adjoining Aqaba Jordan, the answer came to me out of the blue. I wonder if my thinking is right?

I think that a relationship works when both partners want and do more for one another, than they want and do for themselves. By this I mean that a relationship will work if both parties are able to put the good of one another before their own good.

It doesn’t mean that their relationship will be perfect. Sometimes, through sheer boredom and becoming accustomed to one another, it may just be about going through the sameness of the motions of giving – and often is. But giving something positive to one another, and continuing to put giving first and one another first, means that a relationship can last.

If this stops being consensual, if a couple stops doing this for each other – or even if just one of them stops – the relationship will falter and grind to a halt.

I decided to apply this test to people I know, some of them married for many years and others who are clients, either getting divorced or thinking about it. And it seems to work.

Am I right? I’d love to know what you think.

Now we have returned to England. I have returned to my partner, and my son has returned to his. What is more, he has given me something to think hard about and to advise my clients. Despite our different time zones, we had a great week!

Could she have had a second bite of the cherry?

Clearly, Heather Mills was distraught when she stood on the steps of the Royal Courts of Justice and ranted about her award, the judgment and her treatment at the hands of the English court.

There are those in her camp who argue that the judgment was an extraordinarily cruel dissection of her crude attempts to present her case as a litigant in person, against the man who is arguably the best matrimonial finance barrister in the country. Quite why Heather Mills chose such a course of action is a mystery. But choose it she did, notwithstanding the fact that at present, a major criticism of English law in this area is that no-one can say with absolute certainty what the parameters are for settlements in short marriage, “big money” cases. There are so many possibilities. And so I wondered if, despite all the vitriol aimed at Heather, she has actually been an innocent victim of very unclear law?

When I read the judgment and noticed that the parties owned homes abroad, I wondered hypothetically what her position might have been if the facts had changed a little. What if Sir Paul McCartney, instead of being a homegrown superstar, had been a superstar in a foreign country?

If he had divorced her in that country in order to protect his financial position, knowing that the law of that country was much more favourable to him than elsewhere, and she had received only the tiniest fraction of his wealth, could she have come back to England and tried again? Could the courts – the same courts that made this week’s judgment – allowed her a second bite of the cherry and awarded her more?

Part III of the Matrimonial and Family Proceedings Act 1984 was brought into effect because it was recognised that financial hardship affected numerous people (mainly women) who had been divorced in foreign jurisdictions – even if they lived in England. In some of their cases, marriages had been ended abroad without any financial settlements at all, or settlements that were manifestly unfair.

Assuming that the criteria of domicile or habitual residence (to which I have referred in other posts) or ownership of a house in England and Wales can be demonstrated, then a spouse divorced overseas can apply to our English Court for a financial settlement. Provided the spouse has not remarried, he/she has recourse to the same remedies as a spouse divorcing in England.

So far, so good! Heather would qualify.

The court’s permission is still required, in order to proceed. This can be obtained “ex parte”, without the husband or his lawyers present. This, too, would give Heather Mills an advantage!

However, the court will not grant leave unless it considers that there is substantial prospect of success. The burden of demonstrating this success would fall on Heather. She would have to make a full presentation of all the facts as she knew them. However, in one case – W v W, heard in 1989 – the wife was still allowed to proceed in relation to certain properties, even though she had initially failed to make full and frank disclosure.

It is important to note that the English courts discourage “forum shopping”, which is the practice of going to another court simply because of dissatisfaction with the outcome in the first court. That would be an argument against any bid by Heather Mills. In one case, involving an award in New York in 1989, the wife objected and tried again in England – but her application for leave was refused. In another case, involving a French award in 1994, the courts held that orders of a friendly neighbouring jurisdiction should be respected.

Even so, modern jurisprudence does allow for leave to be granted. In a recent case, Ella v Ella (2007), the wife objected to Israeli jurisdiction for the divorce, but the Court of Appeal ordered that the case should be heard in Israel. However, they expressly mentioned the possibility of an subsequent application under Part III, if the wife failed to obtain an appropriately fair order in Israel. Also in 2007, the court upheld a decision to proceed even though a Nigerian court had already made an order.

I believe the courts would look at the facts of the case in the round. The case of Moore v Moore (2007) involved spectacular wealth. The courts gave Mrs. Moore permission to proceed even though the husband thought he had stolen a march on her by issuing divorce proceedings in Spain. I have referred to this type of trans-European jurisdictional race in an earlier post.

Mr. Moore had not applied for a financial settlement in Spain, so the wife swiftly applied ex parte in England using Part III. She had vehemently objected to Spanish jurisdiction. The English court could easily have declined jurisdiction and left the case in Spain, given we are all members of the EU and the “first out of the starting blocks” rule applies (see earlier post). Favouring Mrs Moore, however, it did not. Notwithstanding an appeal to the Court of Appeal, her application was allowed to proceed. Ironically the Spanish courts would have applied English law, as both parties were English nationals. So why did the Court see fit to find in favour of Mrs. Moore, exercising a kindly, patriarchal discretion in her own case – but refusing to, in others?

To put it hypothetically, consider a woman divorcing a hugely wealthy but foreign superstar. Seemingly because of the astronomical costs involved, she had been unrepresented in a foreign court. As a result she had been faced with a low offer, with little choice but to accept it or to litigate on her own. She had been largely unaware of the law, unaware of the technical process involved and unaware of how to argue for discretion in her favour, all the more so given that the law itself is so unclear in terms of the parameters of the award. She had been hopelessly unable to deal with cross-examining on complex financial disclosure, and hopelessly unable to cross-examine her husband or even present her own case with any merit.

Could such a woman come to this country and ask the court to reconsider her financial position? Having sustained a mauling as severe as Heather Mills undoubtedly did, would she have any serious arguments to put before an English court for a “rethink”?

I believe so. The law in this area is so unclear, so as to give rise to so many different interpretations of needs. In Miller v  Miller (2005), the House of Lords awarded Mrs Miller some £5 million out of £32 million for a childless marriage of two years’ duration. What gave her that entitlement to such a large percentage and Heather Mills to a tiny fraction?

As ridiculously exaggerated as I think Heather Mills’ needs were, I personally doubt that they would have been so minutely and painfully dissected by an independent English court, looking at the position completely afresh following an earlier, foreign decision. I doubt that such a tight rein would have been applied to her reasonable needs, given the fabulous standard of living of the parties, the welfare of their child, Sir Paul’s gargantuan wealth and the Miller decision. I believe that in these circumstances, Heather Mills’ award would have been at the top of the bracket – whatever that bracket actually is – and above all, would have given her back some of her dignity.

And it would not surprise me in the least if lawyers in this country and other countries, standing back and forming an objective view of Heather Mills’ fate, agreed.

Heather Mills may have done well out of her marriage to Paul McCartney. But to get there the couple waged a vicious and unnecessary war

By Marilyn Stowe

Millions of spectators round the world have been following the divorce battle between the McCartneys. It has grabbed media attention like no other case since the divorce of the Prince and Princess of Wales.

It was vicious. It was played out for all it was worth. On the one side: the abhorred but greatly distressed wife, who acts and speaks before she thinks. On the other: a tight-lipped phalanx of the most expensive black-suited lawyers in the country, out for a big win.

And now that it is over, it seems clear to me that there are no winners. Instead, everyone has come away humiliated.

McCartney publicly dumped Heather Mills. He issued proceedings against her based on her “unreasonable behaviour“. Knowing her as well as he did, what did he expect her reaction would be? Deeply wounded, she emerged to fight back in every way she could – and the parties went to war.

If ever there was a way not to conduct a divorce it was this.

In this divorce case, as in many others up and down the country, the wife had reasonable needs that the husband was obliged to meet. Although McCartney is known for his frugal lifestyle, the parties nevertheless enjoyed a high standard of living during the marriage, with multiple homes and expensive trips overseas. More importantly, they have a child. The figures involved in this case are stratospheric, but the needs of the couple’s daughter Beatrice come first. English law recognises that McCartney and Mills share care of her, and will continue to do for the rest of their lives.

Even so, Mills had no hope of sharing jointly in her husband’s wealth. According to the law, she was entitled to provision for her housing and associated needs, and maintenance that would be “capitalised” – given to her as one lump sum.

What was needed was a pragmatic, ego-free settlement. This could have been concluded a year and a half ago, and would have allowed both parties to walk away with a private, dignified deal. They should have negotiated a commercial settlement. Instead, each one sought victory at the expense and humiliation of the other. The result: a horrible, prolonged court battle.

Mills has been vilified and has not succeeded in cutting a sympathetic figure – despite her best efforts. When she made a spectacle out of herself on GMTV, I found it difficult to pity her. Mired in a soup of anger and self-righteousness, she was out of control: “on a frolic of her own”, as lawyers are wont to say. When she walked into the high court last month, determined to represent herself after dispensing with the services of a top London law firm, I described her as a deluded fool. Her proposal for £125m to fund a billionaire lifestyle based on a four-year marriage defied sensible logic.

However, McCartney’s own conduct has been reproachable. I find it ironic that Nicholas Mostyn QC, the man who has done so much to increase wealthy wives’ settlements, was leading his team of lawyers. This is because the £15.8m offer made to Heather Mills, in the context of this particular case, was simply too low. Moreover, it signalled an intention to fight on and take no prisoners.

Now these two are licking their wounds. McCartney has been ordered to pay £10m more than he offered – a vast sum – plus his own towering legal costs. Heather Mills seems to have not the slightest appreciation of how well she really has done. To get this avoidable result, both have inflicted dreadful wounds upon one another and themselves – and upon the most innocent loser of all, their child.

Marilyn Stowe

Will there be blood on the courtroom carpet this week?

As Sir Paul McCartney and Heather Mills face one another other in court this week, Sir Paul will be flanked by some of the country’s toughest lawyers. Ms. Mills, meanwhile, has elected to represent herself. To my way of thinking, having represented a client in a similar scenario only last week in London’s High Court, to go into court unrepresented is as foolhardy as anyone could ever imagine.

For those unfamiliar with the facilities at the Royal Courts of Justice, let me describe the atmosphere in the sombre courtroom. . Until a final deal is signed and approved by the Court, a fully fought contest could yet take place. Even an agreement reached “in principle” does not guarantee a done deal – and could still break down.

The courtroom is imposing. The High Court judge, Mr Justice Bennett, will sit on a raised dais, without robes or wig. Ranks of lawyers will be seated opposite him. The formidable Queen’s Counsel Nicholas Mostyn, who pulls no punches – he once fearlessly cross-examined an entire opposing team of lawyers, including one by video link while she holidayed in Japan – will sit on the front row. I do not expect him to spare Heather Mills. Behind them will be the barristers and solicitors.

The junior lawyers assisting with the case will bring up the rear. Teetering piles of files, all numbered and paginated, will be stacked on the desks. Individual sets will be placed before the judge, every one of the lawyers and both parties involved. Microphones will be suspended from the ceiling, for an accurate taped record of the hearing. The air will be cold; the atmosphere will be tense and thunderous.

When Heather Mills steps into this courtroom, she will face her husband, this menacing phalanx of lawyers ranged against her, and the judge – who will, I expect, keep the proceedings strictly private. It is only then, I suspect, that she will begin to realise what she is in for. In this courtroom, there will be no prisoners and if an agreement is to be made into a final order, she will be expected to sign up to a draconian agreement drafted by Sir Paul’s lawyers. In my experience there will be a lot of argument about the period of time over which payments are to be made. It isn’t easy for anyone – even Sir Paul Mccartney – to raise a multi-million pound settlement within weeks. It is in his interests to stretch it out as long as possible. In the meantime, agreement must be reached about paying interim maintenance and interest until the payment is made in full. Fine tuning will be needed so that the deal does not become imbalanced in one party’s favour. There will be declarations as to property ownership and contents, tax indemnities, warranties and assurances. There is also likely to be an agreed form of ‘gagging’ clause, – a tough negotiation in itself, if Heather wishes to continue to be a “celebrity”. Then there is child support and other payments for Beatrice. A lot of work must be done. For Heather Mills, the most important point of any consent order, is what is not included and needs to go in, to protect her interests. For Heather Mills to negotiate such an order on her own, pitted against a range of London’s top lawyers, would be lunacy.

But what if there isn’t a settlement? What would she be facing then? Ms. Mills will be up against those some legal brains, which have been finely trained in what is too often an unbelievably vicious process. She will open her mouth before a judge who will not shrink from making the most robust of judgments against her. And she will not be allowed to interrupt.

She seeks an enormous financial settlement, but she will have to put her emotions to one side and deal with her case by reference to the law. I doubt that even she appreciates how difficult that will be. All the fire will be directed at her. The Judge will listen courteously to her arguments, and he will assist her through this process, but at the end of the day, the Court will make a “reasonable” award, and no more. It is extremely unlikely that Heather Mills has the legal skills, or even the case, to come away with anything more than a “reasonable” figure – even if she hopes for more.

Indeed, if she decides not to settle, I think she is in great danger of receiving an award that is significantly less than the settlements that were allegedly offered on previous occasions. If the judge’s award is less than the amount previously offered by Sir Paul, she may also be ordered to pay her husband’s legal costs. The costs of this case are reportedly £2million on each side. Paying two sets of costs could significantly deplete any award made.

Admittedly, Ms. Mills’ experiences representing herself in court, up against her idolised husband and the pillars of the legal establishment, could have all the makings of a great film. She could even play herself as the heroine. However, I fear that single-handed battle in the High Court is a labour for which she is ill-qualified. Even if she does settle, she could succumb to an unbalanced deal that she will regret for the rest of her life. With this in mind, a movie version may end up resembling the McCartney Chainsaw Massacre – with Heather Mills as the victim.

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.