However that shouldn’t keep the law from addressing the needs of all couples. The Government spat came in the same week that the Law Commission published a final report called Intestacy and Family Provision Claims on Death, in which it proposed to give certain qualifying couples in a cohabitating relationship rights to automatic inheritance on intestacy.

The report highlighted some startling figures: it is estimated between half and two-thirds of the adult population of this country do not have a will. It is thought that those most in need of a will – such as cohabitees – are more likely not to have one. The report also pointed to an ignorance of the law in relation to death, and particularly what happens to the estate of a deceased person who dies without a will (“intestate”) whether married or unmarried.

I know about the injustices that can occur all too well, because I often encounter couples who don’t know what will happen if one of them dies intestate, or  with a will that makes insufficient provision for all of that person’s dependents. Such dependents can include include a former wife, a cohabitee and children.

A few years ago I acted for a very pleasant man who was getting divorced. He was in his late 30s and had two young children. His new partner was an equally pleasant woman, and I met her a couple of times during the divorce. The case settled, and he arranged to pay continuing maintenance to his former wife for the young children. He gave his wife his share of the marital home as a clean break.

I never expected to hear anything further. Sadly, about ten years later, his partner came to see me with bad news. My former client had been killed in a road accident. He had never made a will, and therefore died intestate.  The couple had never married or had any children. Under the intestacy rules, his partner had no automatic entitlement to any of his estate. Instead the estate was automatically inherited, in its entirety, by his two children who were still under 18. As the children’s guardian, the man’s former wife was in charge of obtaining the probate (called “a grant of letters of administration” when there is no will). So his former wife was claiming his share of their home on behalf of the children.

My former client and his partner had bought their property together, as joint tenants. They believed that his half-share would automatically pass to her (as it did), but were unaware that a claim could be made against his share of the house on behalf of the children.

In previous posts I have explained the difference between people buying a property together as joint tenants and tenants in common. In this case they had agreed that each other’s share would automatically pass to the second partner on the death of the first, so they had bought the property as joint tenants and had both contributed what they could afford. At the time of purchase the couple had taken out a joint lives policy to cover the mortgage. This was now paid off following my former client’s death, and his share of the house was worth a significant amount of money. He had also left an estate of about £200,000 in savings, and a policy which had matured. All of it was inherited by the children and she got nothing – apart from a claim on half a house that she had understood would always be hers.

This lady had lived very happily with her partner as man and wife, and when she came to see me she was understandably in a bad way. She had earned far less than her late partner. On top of her bereavement, she was now facing the prospect of losing her home.  She had found out, in the worst possible way, how cruel the law can be when there is no marriage and no will.

What if she had been married?

Under the intestacy provisions for married couples, this lady would have inherited the first £250,000 and had a life interest (the income) in half of amount remaining. Her partner’s children would have inherited the other half outright.

If there were no children, the wife of an intestate would inherit the sum of £450,000 outright, with a life interest in half the rest, and the remaining amount passing to surviving parents and siblings. This is not very satisfactory, but better than nothing at all.

So what were her options?

In this case, the Inheritance Provision for Family and Dependents Act 1975 applied. It was amended in 1995 on the recommendation of the Law Commission. A dependent cohabitee or, from January 1996, a cohabitee who is not a dependent but who lived with the deceased as man and wife for a period of two years immediately prior to the death, can make a claim for financial provision.

The court can make orders very similar to on divorce: maintenance, lump sums, transfer of property orders and so on. In this case, following a negotiation with the partner’s former wife on behalf of the children, an agreement was reached. A lump sum payment was to give the children all the child support they would have received had their father survived. The children were nearing their 18^th birthdays, and we included some provision for university education within the calculation. The rest of the estate went to my client – including the house, which she kept. The estate paid all the legal costs.

The Law Commission’s next steps

Very few people are aware that their automatic entitlement is nothing at all if they are unmarried and their partner dies intestate. Even married partners are left in difficulty because of the archaic nature of intestacy law. This is an area that certainly appears to be in need of urgent reform.

The Law Commission’s report is accompanied by two draft bills. The Inheritance and Trustees Powers Bill (summarised here) proposes that if a spouse dies intestate, the entire estate will pass to the surviving spouse when there are no children or other descendants. When there are children, the Bill aims to simplify the sharing of assets. These suggestions make good sense and are years overdue.

More radically a second draft bill, The Inheritance (Cohabitants) Bill, would give unmarried partners who have lived together for five years the right to inherit on one another’s death. If the couple had a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died. As the Law Commission has made clear, there is much here that is controversial, and support for the reform is by no means universal.

As the Law Commission also recognises, at present there is no law for regulating unmarried couples who have simply split up. As we now know, there will be no such provision in this Parliament. As always, however, the reasoning of the Law Commission is measured, restrained, cogent and above all, it is persuasive.  It is practical and reflects an appreciation of the realities of modern life in the UK.

But what will the Government make of the latest proposals? Perhaps the fact that there are two draft bills, tells its own story. I think we will see change for married couples and intestacy. It is difficult to see any controversy there. When it comes to unmarried couples, however, I am far from certain about changes in the law relating to intestacy and automatic inheritance. Current disagreements within the Cabinet only serve to enhance my doubts.

In the meantime, whoever you are and whatever your circumstances, if you don’t have a will then please make one. There is no time like the present!

Lord Justice Munby, the chairman of the Law Commission, who also sits as a judge in the Court Of Appeal (and was one of the judges in Imerman), made a very wise observation last week.

As the Law Commission prepared to publish its report and provisional recommendations in relation to prenuptial agreements, he told the FT:

Emotions are engaged in a way in which one suspects emotions are not engaged in litigation carried out through Queen’s Bench division or Chancery court.

I couldn’t agree more.

As a solicitor practising at grassroots level, I get to know a client for better (or worse) during the course of his or her case. Indeed, it could be argued that as a solicitor I get to know a client much better than his or her barrister, who may get to meet the client on a few occasions only. Even then the client is buffered by the solicitor for the most part.

In fact, few barristers and even fewer judges will ever see a client in all the differing emotional states that we solicitors do.

A typical case: from denial to acceptance

The example to which I am about to refer describes a female client, but applies to male clients in equal measure. Both are the “innocent parties”, having been left for another person.

Typically I will first see the client, who has been deserted by her husband for another partner, when she is deep in shock. She will be seeing me because her friends or family members think it is the right thing for her to do, in the circumstances. They are probably right, but usually the client isn’t receptive to any of it. The last person she wishes to see is a divorce lawyer, who is there to help her get out of a marriage that she desperately wants to save. This can be the case even when it is clear that the client’s husband, with the advantage of months or even years of planning, has other ideas.

In all likelihood, she is still stubbornly in denial when I see her for the second time. Perhaps she has tried to come to terms with the loss of her spouse, her home and the distress of her children, but it is all too much to bear.

It isn’t happening.

He may still come home.

He just needs time.

Months later, when she begins to move forwards, she will become angry. He has rejected her. The utter coward gave her false hope. How dare he ruin her life and the children’s lives too?

How dare he?

The next time I see her, she is enraged.  Often this is the time when the financial disclosures are being made and she believes that her husband is being less than truthful. Everyone will be getting the flak. It’s everybody else’s fault and above all, it’s his, or his lawyer’s, or his family’s. They are all conspiring against her. She may even be right.

Then, as the truth that he is never coming back home begins to dawn, she will be prepared to bargain, as a last resort to stop the divorce happening. But it takes two to tango, and he’s too far ahead of the game to even consider it. Nothing works. He wants to take full advantage of her weak state of mind to try and get her to settle for too little.

And she finds it incredibly tough.

Time passes. She finally realises that the past is in the past and he isn’t coming back. She accepts that she must come to terms with her family circumstances. She finds herself ready to face the future and her new life without him.

And she does.

However it takes time and courage to get to this stage. It doesn’t always happen quickly, and the court case may be over before she’s even ready for it. I reckon that on average, it can take at least a year for a distraught client to realise she has no choice and to reach this acceptance stage.

For a solicitor, it can be challenging to manage a client who is trying to cope with such an array of emotions. The client can’t help it. Everything she feels is real. Her ups and downs; her highs and lows.  Her pain and devastation may even cause her to react in ways she wouldn’t dream of doing if life was great.

But life in divorce isn’t great. It is far from it.

It can be horrible and lonely. The client can’t help how she feels and she must deal with the pain of divorce at her own pace. And deal with it most of our clients do, physically and mentally.

By the time she reaches the acceptance stage, the typical client will have her urges to text “him” under control. She may have steadied see-sawing weight or had a new hairdo. She will have retrieved her dignity and self-confidence.  Finally the client finds closure, all by herself.

It is a cathartic process, one which all those who have experienced divorce or bereavement will recognise as normal and will have experienced to some degree.

It is of course made much more difficult if the wife is also physically ill. For example, what if she is a cancer sufferer, whose husband has turned to another for comfort? This isn’t as infrequent as you might think. She is fighting two battles, one of them for her life.

I wonder, would binding prenuptial agreements help or hinder this emotional recovery process?

If I were a wealthy man with a newer, more inviting model in the wings, I would – naturally – vote in favour of an advantageous, rock-solid prenup to remove myself from my current marriage. How much simpler life would be!

No messy divorce.

No legal fees.

Trade in one spouse for another.

She would just have to deal with it.

Similarly, if I was a wealthy man and was minded to protect the interests of the wealthy family from which I hailed, I would vote similarly. I’d crunch the older model into the ground: my new wife would be hovering on the horizon – and she would come and go as cheaply as her predecessor did.

How cheap and easy marriage would become!

Consider the needs of the deserted wife.  She is left bereft, alone, with no real income capacity to maintain herself. Her self-confidence is worn down and her dignity is in shreds.

Her husband has shamed her by moving on and worse still, if these prenups with their renewal and exclusion clauses have become binding, and she has been obliged to sign one, there is little that can be done. Nothing is left to the wife other than what her husband has graciously decided to bestow upon her.

As judges know, these wives sign because they trust their partners.

It is difficult enough in cases that involve rich men, with assets in trusts, meeting their wives needs. If these women are tied into harsh prenuptial agreements, their fates would be far worse. The wives would be ruined while their husbands would not.

All our law would be turned on its head. Meeting the spouse’s reasonable needs and standard of living during the marriage? Not a chance.

Let’s consider the emotional states of the parties when they entered into such an agreement. Pre-marital stresses are known to exist. This should be a happy, fun time – but in many cases it is fraught with nerves and worries on both sides. Brides will find they gain or lose weight, arrangements for the wedding are often complicated and expensive, families may be quarrelling, there will be a home to consider, a wedding list, the guests, the cost of it all and the honeymoon. All parties will be treading on eggshells.

Is this the best time for a coldly impersonal marital agreement that, years down the line, could leave one spouse virtually destitute?

Perhaps you would argue that people have a choice and don’t have to sign up to a prenuptial agreement.

But guess what? They are emotionally involved and they trust their partners, even when everyone round them thinks they are fools. They don’t care about lawyers and the future because their emotions are preventing them from thinking rationally. If they were rational, cold-hearted and commercial, they’d never sign a tough prenuptial in a month of Sundays.

Relationships (and not forgetting the intimacy of a sexual relationship which has produced absolute trust in the other) produce normal but highly turbulent emotional reactions which, observed objectively, are off the scale. It is because of those emotions that people decide to marry and for the same reason, why people decide to divorce.

So, if we understand how foolish emotionally involved people are when they sign the prenup, when lawyers can’t stop them, why on earth are we trying to hold them to their crazy bargain? Especially at a time when we need not do so, because we still have the fallback position in Radmacher?

Last week I heard the most unbelievable comment from one client.

Why, she wondered, had her husband decided to divorce her when his company, predicted to be sold in the next few years, was doing so badly right now? Was it because he was so mixed up, having started an affair?

I kid you not.

My client couldn’t see that this was absolutely the best time for him to divorce her, before the business picked up again. That’s because, in classic denial, she just didn’t want a divorce. So she was clutching at anything at all that might mean he was the emotionally unbalanced one of the two.

The First Wives Club

This weekend I watched one of my favourite films – again. The First Wives Club is terrific: it follows three wives through the full range of emotions that are so familiar to my clients, when all three are dumped by their husbands for younger women. The story is of course exaggerated, but the film is brilliant. At the end of it, all three reach the acceptance stage and begin to move on.

The clip above is from the end of the film, when the three wives literally dance off the set, their self-confidence and dignity returned. They accept the past and are ready for whatever the future may bring. And because they are played by Goldie Hawn, Diane Keaton and Bette Midler they all look fabulous.

The First Wives Club is raw, funny and at the same time, truly demonstrative of real life divorce and all its pain. It shows it can be overcome.

I never tire of this film. It’s unashamedly pitched at all divorcing women and if you are a woman going through divorce, I recommend that you download it and watch it immediately.

And laugh!

A final word

It is important to remember, particularly after the ruling in the Imerman case, that if YOU need to draw upon self-help in your case against your spouse, it can be very difficult. The judges are clearly aware of your emotional state, and they may even recognise that emotions don’t occur in the same way in the other divisions of our court system. However this does not mean that allowances will be made for any form of self-help.

The judges will have no sympathy whatsoever and, unlike the triumphant three women in the movie, if you decide upon any self-help you could find yourself in trouble. You could even, heaven forbid, end up in jail.

I wish our judiciary would watch The First Wives Club, and act on it. It should be compulsory viewing!

From the Opinion pages of the Yorkshire Post, 14/01/2011.

Prenups and the law are an uneasy marriage

By Marilyn Stowe

Some are wealthy, some are superwealthy and others are not wealthy at all. What they share are concerns about what will happen if their marriages – or in the case of parents, their children’s marriages – break down. They don’t want any of the family wealth to pass to the divorcing spouses, and they are determined to keep a tight grip on their money.

As a family lawyer, I am a realist who appreciates and will act upon a client’s wish to protect assets or ring-fence family wealth. As a wife and a mother, however, I am not a fan of prenuptial agreements. I would not have signed one, nor married anyone who asked me to as a precondition of marriage. I would not wish to see my son or a future daughter-in-law locked into a prenup, for reasons that I shall explain.

At the time of writing, prenuptial agreements may be upheld in England and Wales – but only at the judge’s discretion. Change, however, is in the air. To great fanfare, the Law Commission, a government-funded body tasked with making recommendations for law reform, has this week published a 150-page consultation document. In it, the Commission sets out “provisional proposals” to give some prenups, those dealing with inherited wealth and preowned assets, automatic force of law.

This development follows the Supreme Court’s decision in the long-running case of Radmacher v Granatino, which involved a German heiress, a £100m fortune, a French former banker and a hotly-contested prenup. The case made headlines last October when eight out of nine Supreme Court justices upheld the agreement and ruled that, provided certain formalities are complied with, a prenup can hold “decisive” weight – even if, as Mr Granatino complained, the agreement seems to be unfair.

Note that the Law Commission’s new consultation document is a lengthy, intellectual and extremely careful recommendation in favour of legally binding agreements. There are few “get out clauses” designed to protect pre-owned assets or inherited wealth – irrespective of fairness, which is the basis of current law.

If these proposals become law, it looks as if the court could intervene to dismiss such an agreement only if insufficient provision was made for the children of the family, or if the weaker spouse was thrown onto the State.

I can understand how, in certain high-profile cases, a binding prenuptial agreement would forestall much of the potential fallout and safeguard dynastic wealth. For example the members of the Royal Family, for all their wealth and privilege, seem peculiarly vulnerable to divorce; indeed, the divorces experienced by certain of the Monarch’s children have been prolonged, unpleasant affairs played out in the public eye.

The marriage and subsequent divorce of Sir Paul McCartney and his second wife, Heather Mills, also come to mind.

In such cases, if significant inherited or pre-owned assets are not used to meet the reasonable needs of the parties during the marriage, I see no reason why, in the interests of fairness, those assets could not be ring-fenced.

Then there are the “everyday” couples who, in an increasingly risk-averse society, simply wish to protect assets in the event of divorce and may benefit if, and when, prenuptial agreements are given automatic force of law. They could include couples who are entering into second marriages, who wish to protect the children from their first marriage.

What is often overlooked, however, is the effect of a prenuptial agreement on the marriage itself. I have seen cases in which a prenup has actually “legally handcuffed” the weaker party to a relationship, and the marriage founders upon increasing resentment. As marriage is an equal partnership, I believe that, generally, it should begin as one – although it is true to say that with or without a prenup, there is no guarantee of a successful marriage.

The bedrock of our family law system is its fairness, exercised through judicial discretion. It can protect the vulnerable from what is manifestly unfair. At present, our family law is not based on a one-size-fits-all approach; instead, each case is treated differently, within the context of each couple’s finances.

A binding prenuptial agreement, which completely ignores this principle, does not sit easily with current law. Yet it seems that, despite this being a non-urgent area of law involving relatively few couples, there is a clear appetite for change. I expect we will see swift, fault-free divorce and tough, uncompromising law enforcing these prenups.

However, I can’t help thinking that the length of time it has taken the Law Commission to produce this consultation document, the length of the document itself, its uncertainties and complexity, all point to one thing. This is the incompatibility of the uncompromising prenup with our current law.

So what next? If new legislation is indeed on the way, it will likely be accompanied by family law reform that is tougher and more radical than any of us could have foreseen.

Marilyn Stowe is the Senior Partner at Stowe Family Law in Harrogate.

What a cracking phrase that is! It uplifted me, because I spent a long time last weekend considering the content of the post I was writing about prenuptial agreements in advance of the Law Commission’s consultation paper.

I know that frequently, without trying, I find myself in conflict with those who simply “toe the line”. But if you believe in doing what is right, sometimes you have to raise your head above the parapet.

Staying quiet if I spot something wrong and unfair is not me, never has been and I doubt ever will be. But it’s not always easy: sometimes you take a risk, speak out and then wonder why you bother. From now on, I’m going to stick with my new motto and go for Justice with Courage in all that I do!

The London dungeon

My next stop was London and a three hour meeting in a whitewashed dungeon. Or at least that’s what it looked like. I was actually sitting deep in the heart of the Law Society’s Hall in Chancery Lane. It is quite a building: the first time I visited was to be admitted as a solicitor many years ago, and I will readily admit that it terrified me! Now I go there quite often, and it is still just as imposing. The room I was in is actually fancifully termed The Members Private Dining Room, but I prefer my own name for it: The Dungeon.

At the meeting, no doubt overcome by the lack of daylight, I “volunteered” to draft an up-to-date version of the current Assessment Questionnaires for applicants who wish to join the Law Society’s Family Law Panel. I was heavily involved in drafting the original versions more than ten years ago – and it’s now time for a serious overhaul. If any Family Law Panel Assessors or members of the Family Law Panel would like to contribute some suggestions, please do! All suggestions will be gratefully received.

On the very same day, while I sat in the dungeon, the Law Commission published its consultation paper. The Yorkshire Post asked me to write a comment piece about it, which I did, trying my utmost to squeeze my opinions into 850 words. It meant working late into the night and having to read the very lengthy Resolution response, which seems to go even further than the Law Commission is recommending.

My newly adopted motto notwithstanding, I have always tended to side with the needy, weak and defenceless. I am not afraid to say that I do not see the need for any new legislation at all, given the Radmacher decision, which I believe is quite sufficient. Instead, I continue to place a high value upon judicial discretion and our common law, which nearly always works (well, almost always – let’s not forget Imerman). Justice with Courage…

Wringing out CMEC

The next day, accompanied by my stalwartly patient and wise assistant, Paul Read, I had some clients to see. However I had time to note the Government’s latest proposal, to charge couples £100 if they use CMEC (the Child Support Agency’s replacement) to sort out their maintenance arrangements. In the past I have been highly critical of the Child Support Agency. It went wrong right from the start, with a farcical formula that nobody could calculate without a computer. Even then, two people on the same case would most likely arrive at different answers.

When the CSA launched I was a Tribunal Chair. This was termed a judicial position, but I soon became disillusioned and resigned after it became clear that I had no powers to administer justice and fairness between couples. Instead I was locked into a rigid inflexible administrative system and the best I could ever do was send the calculation back for reassessment.

If the volume of adverse comments about the CSA that this blog receives is anything to go by, matters have not improved. The most common complaints are the complexity of the rules and calculations, the bureaucracy, the rigidity of the conclusions, the slowness, the lack of proper enforcement powers, the unfairness and many, many mistakes.

This system should have been abolished years ago. And now mothers and fathers, many of whom have no alternative, may have to pay £100 for the privilege of locking themselves into it!

So here’s a tip for divorcing couples:

In many cases, family lawyers have been able to get round problems with CMEC by negotiating global maintenance figures for spouse and children. Canny spouses know that a year later, they can go to CMEC and, with some footwork with the figures, can secure a lower maintenance order.

To prevent this from happening to you, make sure that the original order provides against it. You should ensure the order is technically and automatically renewed each year. It has a lovely title and is therefore easy to remember: it’s called a Christmas order!

This weekend I’ll be listening to Stowe Family Law’s Stephen Hopwood review the papers on Radio York, which should be good.

And how do I plan to spend the weekend, apart from a complete rest?  Well, in return for a beautifully cooked dinner by my son Ben in London, I’ve brought back…two loads of washing! I always moan at him for landing me with washing, but I wouldn’t have it any other way. Even if I’m not great with shirts…!

The Law Commission, which recommends potential changes in the law to government, is also currently considering this area of the law. Professor Elizabeth Cooke of the Law Commission has now confirmed that various options will be put forward to Government, including recognition of prenuptial and postnuptial agreements and that the report will be accompanied by a draft bill for consideration by Parliament.

The argument in favour of change, according to her, is that people are being deterred from marriage by big pay-outs under the current law, and she states: “There is a certain amount of financial carnage when people get divorced. A well drawn up prenup can give greater predictability”.

With great respect to Professor Cooke, I do not think it is appropriate to describe a financial settlement between the parties as “carnage”. Nor do I agree with the argument that by signing a prenup, hundreds of thousands of people in this country who currently aren’t getting married will be heading off to the altar.

Couples are deliberately choosing not to marry, not because of the law, or any change to the law as envisaged, but because society has irreparably changed. Most people now aren’t now marrying too young or immaturely and then bitterly regretting it– whether shortly afterwards or years later. They aren’t leaping into the legalities until they are absolutely sure that they are making the right decision. Others that don’t marry, including some of those who are dependent upon state benefits, won’t marry either – with or without this proposed change in legislation.

I will be exploring the subject of prenuptial agreements in greater detail in a later post.

This post won Family Lore’s Post of the Month Award for November 2009.

Today I appeared on BBC Radio 4 Woman’s Hour in a debate with Baroness Ruth Deech about the subject of cohabitation.

Two years ago the Law Commission (of which I was a member of the Legal Advisory Group) recommended that on cohabitation breakdown a scheme should be introduced which would compensate a cohabitant who could establish economic loss as a consequence of the relationship. It was purely compensatory, and not intended to give a claimant a divorce type settlement, because, as was stressed in the report, there was no intention to equate cohabitation with marriage. This form of compensation is already law in Scotland and the government is awaiting feedback from the Scottish scheme in order to decide whether to introduce similar provision for the rest of the country. Earlier this year, Lord Lester’s Cohabitation Bill, which proposed reforms to protect cohabitees and their children from falling into poverty, was debated in the House of Lords.

The story has hit the news again this week, as Baroness Deech has given a lecture describing Lord Lester’s proposals for a cohabitation law as “a windfall for lawyers but for no one else except the gold digger”. She believes that cohabitation law could invite blackmail and bullying from former partners and that it “retards the emancipation of women”.

These latest offensive and unfair comments are, of course, particularly close to my heart.

Baroness Deech is an academic, and is not – and never has been, to my knowledge – a practising family lawyer. Does she have the slightest working knowledge of the everyday misery and poverty caused by cohabitation breakdown to, in the main, women and their children, who currently have no remedy of any worth in law? As a practising family lawyer, this is something that I witness regularly.

She is of the generation that did not cohabit (as I did before my marriage) – her generation simply married. She discussed in her speech the concept of private immorality impacting on public morality. In my opinion she does not speak for the vast majority of people, who regard living with a partner as perfectly acceptable and yet whose cohabitation relationship is viewed in law as so derisory, it is unworthy of a composite legal framework, even though it also causes profound hardship to the very children she aspires to protect. In fact it is her perception of morality that appears to colour her entire approach and render her wholly out of step with millions of people in this country, who are cohabiting, in the 21^st Century.

Of course many cohabitants go on to get married, but many do not and their relationship continues until ended by breakdown or death. There are legal remedies available to surviving cohabitants on death. However, that is not the same if a breakdown occurs while both parties are still alive.

I believe that Baroness Deech thus causes gratuitous, untold offence to mainly women who may unwittingly find themselves in that situation; she even perpetuates what I believe is overwhelmingly a myth of “profiteering gold diggers” seeking to benefit from a cohabitation breakdown – when nothing, in my experience, could be further from the truth.

There are literally thousands of women (if the number I see in my office is multiplied across the country) materially disadvantaged by a breakdown in their relationships (and which also impacts on their children) who, unlike Baroness Deech, do not have her powerful brain, nor her opportunities in life. They do not enjoy a life of luxury and privilege, whether they live with their partner or not.

These women are literally left homeless, without income, capital or pension. They may have lived with their partner for the last 30 years. They may have raised children who have grown up and moved away. Or the relationship may be shorter and the children may still be living at home. Their partner may have all the income and capital in the family locked up in his own name. And the woman discovers that she can be traded in for another, for far less than even the cost of a cheap second hand car. She can be traded in for nothing at all.

These women have no financial remedy to save them from the economic loss they sustained as a consequence of the cohabitation, and they and their innocent children are frequently left to fall back onto the State – the very thing Baroness Deech protests that she seeks to stop. Why should that be? Why should the other partner simply walk away with no obligation at all having had the entire financial benefit of the relationship for all the years beforehand? Why should her contribution as a homemaker count for nothing as a cohabitant – when exactly the same contribution counts as equality with the breadwinner on divorce?

The proposals currently with the Government based on a report by the Law Commission now some two years old, do not equate cohabitation with marriage. The proposals would only compensate a cohabitant who could demonstrate genuine economic loss as a result of the relationship breakdown. There would therefore be no ‘gold diggers’ charter. Instead there would be awards of compensation for loss, which as in Scotland, would bear no tangible resemblance to divorce settlements and would not therefore dilute marriage at all. In fact it would probably strengthen marriage if the remedies on cohabitation breakdown became law.

Some would even go as far as to argue there should be parity between cohabitation breakdown and divorce. I do not, because I do see a real difference between a legally binding agreement to marry and the lack of commitment in cohabitation, no matter the circumstances or what those reasons may be. Marriage must always be sacrosanct.

My concern remains however, for those people in need who suffer – genuinely suffer – along with their children and yet have no legal redress and plainly inadequate legislation to rely upon. It is an anathema that in Scotland cohabitation law exists, and yet in the rest of the UK it does not.

It is an anathema that we have such second class families at all in part of this country and that the Tories, once in government, would have us go exactly the same way.

Heaven help the 21^st Century family everywhere in our country – except Scotland.

Image credit: docman

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

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From the Solicitors Journal, 03/11/2009.

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

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

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

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

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

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

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In the last post about coping with divorce, I wrote about how distressing the divorce process can be and how, to emerge whole at the other side, it is vitally important to do whatever it takes to keep your mind in shape.

This post is a cautionary one, about what can happen if you give in to those demons lurking in your head. I have previously written about the dirty divorce tricks born of the desire for vengeance. Earlier this week I described how bottled up emotions can result in emotionally charged choices and behaviour. Now I wish to look at how the repercussions can affect younger members of your family.

During a divorce you can be tempted to surrender to those demons, to let your baser emotions spin of control, to fight and to cause pain. However the opportunities to do so are limited. This is because the legal procedure is strictly controlled in financial cases, as misconduct is rarely of relevance and is generally frowned upon by the courts.

Proceedings involving children are different. In such cases allegation upon allegation, true or malicious, can by heaped upon parties in ”the children’s interests”. Common sense and rational thought can fly out of the window.

You mustn’t go there. But some people do.

After 26 years as a divorce lawyer, I am not easily shocked. While reading some recently reported children cases, however, I was taken aback by the bitterness and malice that leapt from every page.

The ex-wife who went to prison

In a case heard by the Court of Appeal in July 2009, the judges even had to consider an appropriate prison sentence for one wife. She had originally obtained a residence order for the couple’s children. The couple gave undertakings to the court as to their future good behaviour.

Clearly the residence order and her parental obligations had little meaning for the wife, because she ignored her undertaking on several occasions. She attempted to disable her husband’s CCTV. She encouraged the couple’s son to break the lock on his father’s gate and set fire to his father’s motorbike. The fire escalated and damaged the back of the house and some contents. She sent her former husband 117 text messages accusing him of raping their daughter. She set up a direct debit to the RSPCA using her former husband’s bank details. She screamed and shouted at him outside his house, calling him a paedophile. She tried to have his disability benefit stopped.

The Court of Appeal gave her six months’ imprisonment for breach of her undertaking. A criminal court had already sentenced her for the arson attack.

And what of her children, I wonder? How are they coping? What does the future hold for them?

Five years of litigation

Here is another case from the same period, which kept Mr Justice Munby busy in the weeks leading up to his new job heading the Law Commission. The case was described in the Law Reports as “highly acrimonious residence and contact proceedings”. This description struck me as something of an understatement…

The residence and contact proceedings had gone on for five years. A guardian had been appointed for the couple’s child. The guardian considered that the parents, by their behaviour towards each other and by their conduct of the lengthy litigation, had caused the child (now eight years old) emotional harm.

The father tried to have the child’s guardian and her solicitor removed from the case and both imprisoned for – an admitted but mistaken – contempt of court. He also applied for the release of documentation, so that he could complain to the GMC about the expert psychiatrist who had prepared reports on both parents.

All these issues required judgments from the overburdened judge – and no doubt a great deal of worry for the professionals involved. I noted that the parents in this case did not appear to have appointed lawyers. (I also wondered if lawyers’ advice and costs could have encouraged the parents to end the litgation sooner.)  

At the judge’s suggestion a consent order that focused, sensibly, on where the child was to spend time – rather than upon issues of “residency” and “contact” – was ultimately agreed by the parents. A review was fixed to take place after six months.

Was this the end? Far from it. Almost immediately the father expressed reservations. At one point before the expiry of the six month period, the father was seeking no fewer than 30 court orders including sole residence in his favour. Both parents breached the judge’s directions for succinct written submissions and both parties sought costs orders against one other. The father also sought permission to appeal the judge’s order, but refused to give the grounds on which he intended to appeal. The judge had to spend a good deal of time dealing with all these issues in various judgments.

Mr Justice Munby clearly exercised the utmost patience and consideration for the battling parents, in a case that would have tested the patience of Job. He expressed his sympathy for other litigants and children caught up in “an already overlong queue”, who were still waiting their turn because of such intensive judicial involvement in this one case.

What to do? Sally Ward of children’s charity Pro-Contact says that parents have to be good, but not perfect. I am not sure that court is the best place for private children cases. I also believe that contact centres, where are there are skilled people who can assist with the emotional aspects of such cases, should be used more and should be better funded. Such measures could help resolve cases and free up the courts’ time.

The cases described above are not isolated examples. Sadly there are many parents caught up in lengthy residence and contact disputes.

Long since forgotten, or so it would seem, is the plain fact that these parents conceived their children together. Until the divorce, they all lived together. When the parents go to war over their children and engage in protracted and bloody battle, whose needs are placed first? Who emerges with the battle scars?

Who, ultimately, pays the terrible price for such emotionally charged choices and out of control behaviour?

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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.