This post won Family Lore’s Post of the Month Award for July 2010.

Yesterday the Court of Appeal made a landmark ruling that has been described as a “cheat’s charter”. You can read the details here. I must warn you in advance that this is a lengthy post; however I would like to explore the horrifying implications of this ruling for divorce cases up and down the country. We will begin with an ordinary couple, and we’ll call them Jim and Mary.

Jim is a postman. He is married to Mary, a factory worker on a production line who gets paid £250 in cash every week. He doesn’t know what she does with her money. Mary decides to divorce Jim after 25 years of marriage. She has started an affair with Fred, his best mate. Jim is distraught. Frantic, he comes across 10 bank books and some Premium Bonds buried under some papers she has kept in her drawer by the bed. There is no lock on the bedside drawer and after 25 years, Jim knows exactly where to look. He can see that Mary has been quite cute, and the bank books show that she has managed to save a total of £50k – every penny she has earned in her working life – while he has supported her and their children. He notices she has even had a few wins on the Premium Bonds, about which he never knew. Furious, he phones his solicitor John, to tell him what he has discovered.

“She has £50,000!” he tells John, totally shocked by the discovery. “Ten bank books, wins on the Premium Bonds – I never knew! She was living off my money and all the time she was squirrelling away her own. Can I bring a copy of everything that’s here over to you?”

This time two days ago John would have said of course you can. Today he can’t. Because if he does he may be opening himself up to a civil claim against him and his firm by Mary, for breach of confidence and more besides. He wouldn’t be receiving the copy documents innocently. He would know that Mary doesn’t know he has them. And he would know she wouldn’t be best pleased about it. So even though John is acting as a solicitor in Jim’s best interests and putting the best case he can to the court – which is what Jim is paying him for – Mary could sue him.

“I’m afraid you can’t bring copies over” he tells John. “And what’s more, you can’t copy the bank books – or anything else for that matter.” Continue reading »

I am in Chicago this week; I was delighted to address the lawyers at Schiller DuCanto & Fleck LLP, the largest family law firm in the USA.

The city is buzzing: in a few days’ time Oprah will close the famous Michigan Avenue – the “Magnificent Mile” of top stores – and launch her next series from outside the Wrigley Building. The Black Eyed Peas will be in concert with her!  Next month, Chicago will learn if it has succeeded in its bid to host the 2016 Olympic Games.

I am fond of Chicago and find it difficult to do it justice when describing it. Situated on Lake Michigan, its architecture is stunning. The buildings are set off by the vast lake and the river that flows through the city. The views are overwhelming.

As for the artwork in this city: it is spellbinding. Want to see that quintessential American painting, American Gothic? It is here. So too is the best collection of French Impressionists in the world, displayed in room after room at the Art Institute of Chicago.

I took a trolleybus down to Chicago’s South Side, to visit the areas where blues music has a home and to see the relatively modest home where a black American law lecturer and his family lived – before he became President of the USA and left for the White House.

Schiller DuCanto & Fleck is situated on the top floor of a skyscraper on LaSalle Street, which doubles as Gotham City in the Batman films, and its offices provide amazing views across the city. The firm is headed by renowned American “superlawyer” Donald Schiller.

I didn’t know what to expect when I visited, but I needn’t have been concerned. Continue reading »

With a forensic accountant as an advisor, a client can be given a swift measured opinion. 

Here at Stowe Family Law we have our own in-house forensic accountancy department. It happened more by accident than design.

About four years ago, I had lunch with a partner at a well-known accountancy firm. I had encountered him professionally on a number of occasions, when he had acted for our clients and against them. I was impressed, as I knew local barristers were, by his sensible, moderate and economic approach. He didn’t waste time and money asking questions that made no difference to the outcome. He was good at giving evidence and his concise opinions were respected by the court. 

As we had lunch it dawned on both of us that we could work together, to offer a novel service to our family law clients that other firms did not. We shook hands there and then. This was how the accountant in question, Nick White, came to join us. It was as simple as that. I liked him, I trusted him and I trusted him to advise our clients. The arrangement has worked very well, and Nick White now heads our flourishing forensic accountancy team.

It means that when clients come to see us, there is no frustrating wait for financial information before we can advise on tactics. Instead, we can begin work immediately. This is particularly pertinent when we have to consider a freezing order (known as a Worldwide Mareva) against a client’s spouse. In such a case, time is of the essence.

With access to Companies House and global databases, Nick can download information, analyse it immediately and advise us where to concentrate our efforts. He can tell us if the client is likely to be chasing rainbows, or if there really is something worth looking at. He can provide immediate advice about the likely scale and nature of a case.

On occasions, a client’s understanding of a spouse’s financial situation does not match the reality. With a forensic accountant as an advisor, the client can be given a swift measured opinion at the first or second interview.

Similarly, our forensic accountants can provide advice about the likely value of a client’s business for the purpose of a divorce.  Continue reading »

Settle your case on a continuing maintenance basis, and it can come back to haunt you…

For many people, a financial settlement represents the final chapter in a divorce. Generally, it comes to all concerned as a huge relief. Parties can begin to rebuild their lives, putting the unpleasantness of a break-up behind them. For those who achieve a clean break settlement, it will most likely be the end. However, for those who continue to pay or receive maintenance, this is not necessarily the case.

Maintenance may be paid for a period of time, with the court reserving the power to extend that period – or not, as the case may be. Maintenance may cease on cohabitation and will automatically end on the recipient’s remarriage. In other cases, maintenance will have no cut-off date and will only be stopped on the orders of the court, or on the death of the payer or payee.

If one of the parties wishes to bring an open-ended maintenance order to an end, this may occur by mutual consent. Both parties may agree that the time has come for the order to cease, the recipient spouse being able to manage alone.

Solicitors are consulted usually when there is no such agreement, and one party does not want to end or reduce the obligation.

Variations of maintenance orders are expensive and risky. As with the original application for a capital and income award, it involves going through the County Court or Principal Registry in London. The costs will be high – and as a result obtained for either party is likely to be disproportionately expensive. In a straightforward case, it makes sense to negotiate or proceed via the Magistrates Court. This is a simpler and cheaper process. However, when larger sums of money are involved, an experienced Judge will be required to make the determination.

There aren’t any winners in a Maintenance Variation. I don’t recommend it unless it is absolutely necessary, and legal costs are not an issue.

This isn’t all. Continue reading »

Perhaps I have been fortunate; in my experience, arguments over religious divorce between parties are swiftly resolved.

The row over the Archbishop of Canterbury and his comments about the “unavoidable” introduction of parts of Sharia law has gone global. I have some sympathy for the beleaguered Archbishop, because he is a deeply sincere man and wholly committed to the Church of England. He appreciates that we live in a multicultural society and wishes to embrace and welcome those not of his Church. In general, I believe he has been misinterpreted and misunderstood. However, I can also understand how his comments have caused great offence to all faiths and have been viewed by many as inflammatory. He hoped to do some good, but seems to have achieved the opposite.

As the debate has gathered in intensity, the apparent “exclusivity” of the interplay between the Jewish faith and English family law has also emerged as a subject for discussion. Being Jewish and a divorce lawyer I may be able to offer a little clarity. In my experience, the two work quietly and successfully together. I also believe it is important to note that the relevant part of English civil law is not exclusive – but is equally available to all faiths. Continue reading »