However this fortnight away provided a much needed rest. I did very little work (although there are some clients and Stowe Family Law partners who may testify differently…) and it was a chance to recharge my rundown batteries. Many thanks to Harrogate’s Managing Partner, Julian Hawkhead and trainee Laura Guillon, for filling in for me on the blog.

Thanks too to John Bolch, whose Family Lore blog kept me fully up-to-date with family law developments while I was away.  A quick dip in to see what’s going on is all that’s needed, which is what I did each day. It’s a thoroughly entertaining blog and informative even over the weekend, when it becomes more fun.

I see that we both covered the Mostyn divorce, albeit in different ways! John Bolch has an irreverent sense of humor, which I love: as a full-time blogger and writer he is no longer bound in the same way as I am, by our professional conduct rules…….

I also read two cases of interest via Family Lore’s sister blog, Family Lore Focus. Yes, even relaxing by the sea, I was spotting cases which I thought would interest readers!

Yankah v Yankah

The first case, Yankah v Yankah, was an unsuccessful attempt by a wife of a bankrupt man to have her husband’s share of their home transferred to her. Predictably, she failed. Once bankrupted, a spouse’s half of the house transfers automatically to the trustee in bankruptcy. The court cannot transfer a husband’s half share to a wife, because in law that half-share is no longer owned by the husband. It’s tough, very tough, on the wife. Often, as in this case, the house is the only major asset in the case.

However, here’s a tip. The only saving grace in such cases is that a spouse is permitted to stay in the property for 12 months after bankruptcy is declared, before it needs to be sold so that the trustee can get his share. It is worth trying to negotiate a deal whereby, in exchange for an earlier sale date, the wife gets more of the equity. It can be done and we have done it for a client of ours who ended up much better off for it.

N v N

The other interesting case I read was N v N. This is a maintenance case. The period of maintenance was supposed to end after five years, at the end of 2009, but the order left the wife free to apply for an extension. The wife did so, and it turned out that she hadn’t done much about readjusting her life and getting decent employment. The court extended the term by two years.

There followed some ups and downs in the local court on appeal. When the case was heard before a circuit judge the wife was more successful, obtaining an order that extended to 2015 and thereafter a nominal payment for joint lives.

The husband appealed, citing fundamental procedural flaws by the circuit judge. The case ended up in the Court of Appeal before Lord Justice Thorpe, who set aside the decision of the circuit judge and restored the original order of the district judge who had heard all the evidence, and who had decided that no further extension would be permitted after a further two years. The district judge had applied what is called a s 28(1)(a) bar, under the Matrimonial Causes Act 1973.

Lord Justice Thorpe observed that the district judge had heard all the evidence, which the circuit judge had not, and therefore had a similar opportunity of weighing up all the facts. He wasn’t going to disturb those findings with which he could see nothing to disturb. The district judge had not been plainly wrong in exercising his discretion as he did.

But I wonder: was the district judge correct? Or was the (more senior) circuit judge the one in the right? While the Court of Appeal looked at the minutiae, which it had to do, has justice been done to that wife or has it been cruelly undone?

If anything, this case serves to graphically demonstrate the uncertainties of our judicial system of discretion. For example, an application for continuing maintenance is dependent upon facts and on the day, the application’s outcome depends upon how the judge sees those facts. The application is dependent upon the decision of one judge, who has absolute discretion as to what to do and, provided that the judge’s decision falls within wide parameters and is not plainly wrong, it will stand.

Judges may take different views from the same facts. Making the call for your client, therefore, isn’t a precise science. Inevitably, those who litigate may do so on the basis that you pays your money – and you takes your choice.

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.”

“Why not?” howls Jim. “It’s proof she has plenty of money! Surely what’s hers is mine because, sure as heck, what’s mine has been hers!”

“The House of Lords are up for sharing all the assets from an equal starting point”, says John patiently. “And I agree with them about sharing; but unfortunately the answer is still no, you can’t copy anything. However do try to remember what you have seen, because it might be useful if she doesn’t declare it in a few months when she has to produce her Form E disclosure.”

Jim is flabbergasted. “I was never good at memory games!” he cries. “In fact, I can’t remember now what I saw in that drawer except there were ten bank books and some Premium Bonds.”

John tries to calm Jim. “I can’t tell you very much about the law, because the law about what you can do and can’t do is about as clear as mud right now. A new case has come out and shaken everything up. So all I can tell you is that if you copy the bank books, you are opening up a can of worms for yourself as well as for me. And anyway, I can’t see the copies because if I do, there is a chance that Mary will try and get me thrown off the case! You never know, she might disclose it when it comes down to it.”

Jim is sceptical. “Why should she disclose her secret £50,000, if she has kept it secret from me and from the kids for 25 years?”

John sighs. His mind is heavy with additional concerns. Staying in practice, keeping his indemnity insurance policy intact… These are more important to him right now than his ranting client, even if Jim does have good reason to be annoyed.

“All I can advise you to do is to write down what you can remember. Then, if Mary’s Form E comes in a few months and it’s not on there, we will have to fish about for information.

“It’s going to whack up your costs by a few thousand pounds I’m afraid”, he adds, conscious of the requirement to give full costs information. “But at least you and I will be obeying the letter of the law… whatever the law is. I will put my increased cost estimate in the post to you tonight…”

Imerman v Tchenguiz

You might find the above conversation rather absurd. I do. However it is a conversation that thousands of lawyers across the country will be having with their clients. All this has come about as a result of the Court of Appeal judgment yesterday in the case of Imerman v Tchenguiz, which was heard together with the case of Imerman v Imerman. I think it is a pity that both cases were heard together, because it seems to have tainted Mrs Imerman when I think she has a very arguable case. I will explain why.

For those new to the case: Lisa Tchenguiz married Vivian Imerman, the former owner of Del Monte Foods. Her brothers are the property tycoons Robert and Vincent Tchenguiz. The three businessmen shared an office.  When the Imerman marriage broke down, the Tchenguiz brothers locked Vivian Imerman out of the office and downloaded between 250,000 and 1.5 million documents from his computer, which they then handed to their sister’s divorce lawyers. They did so because they believed he had no intention of making full and frank disclosure of his finances. They took the law into their own hands and as to what they did, there is no doubt that they were wrong.

As you may have read, the Court of Appeal has now ruled that the information obtained by Mrs Imerman’s brothers could not be used to support Mrs Imerman’s claim in her divorce case.

Is there a case for “self help”?

In a previous post about Hildebrand documents, I discussed the concept of “self help”. This, surely, was the most spectacular case of “self help” imaginable. It was an extreme example, not least because Mrs Imerman had nothing to do with it. She and her solicitors simply received the documents. Although there is no excuse for what the brothers did, surely when it is between husband and wife, there is a difference?

Here are some further questions.

• What is wrong with a measure of self help when parties have entered into a marriage contract and therefore both have a legal entitlement to share in all the assets of the marriage?
• What is wrong with one party taking a small measure of self help to ensure that all the assets are disclosed?
• If you come across documents in your bedroom or your kitchen or anywhere in your home, why does it matter whether they are yours or your spouses? You are both married to one another, aren’t you?

I would also refer you to the Court of Appeal judgement in White v Withers, about which I have already posted. You will see there was a divergence of opinion about harmless self help, such as that required by Jim. Lord Justice Ward said any self help was illegal; Lord Justice Wilson said that it was not, and that it could be justified in law.

Yesterday the Court of Appeal shrugged off the concerns of the great family lawyers, Lord Justice Wilson and Mr Justice Mostyn, the latter of whom has recently expressed practical views of the realities facing couples in divorce proceedings, saying that he saw nothing wrong with a spouse downloading information about her spouse’s finances from a family computer to which she has legitimate access. I agree with him because – as we family lawyers know for sure – without a measure of self help, some spouses would simply “get away with it”. Section 25 of the Matrimonial Causes Act 1973 would appear to provide a defence to a measure of self help.

Instead, the Court of Appeal held that between married couples there is still an entitlement to privacy between them. Perhaps, but in relation to financial disclosure I profoundly disagree. It means that a married couple is entitled to privacy from one another in relation to what are, after all, matrimonial assets.

Back to the time of Mr Bumble?

For me, the Court of Appeal’s decision is a throwback to the Victorian age – from which I thought we had long since escaped.

When I got married I entered into a solemn contract with my husband, which means that what is his is up for sharing and vice versa in terms, heaven forbid, of divorce. I therefore see no reason why I couldn’t go in his bedroom drawer or log on our family computer to download all the information I want about his share of our  joint finances. He could download information about mine, and he would be very welcome to do so. I am not his Victorian wife living in secret from him. I am his 21st century partner and I am entitled to know everything about our financial position, as he is too.

In the event of a divorce, every single penny of a couple’s assets are up for division, because of each party’s entitlement to share in those assets, which is fully enshrined in law. That is the case regardless of who owns them before a court decides. It doesn’t matter whether he has more than me, or I have more than him. It will all be taken into account, because we both have an entitlement to the assets by virtue of our marriage. How the assets will be shared however, is a different argument.

We know that since White v White, there is no distinction to be drawn in law between a homemaker and a wealth creator in a marriage, and that is right. If the wealth creator tries to pull a fast one, why should the homemaker be blamed for taking reasonable steps to protect what is already hers for division?

Unfortunately the Court of Appeal yesterday was dominated by judges who are not family lawyers and who have little experience of the realities of dealing with everyday cases such as we lawyers deal with across the country. Imerman is the most extreme case possible in terms of the vast wealth of the parties involved and the extreme lengths to which the brothers went to help their sister. A husband and wife are not two commercial entities whose entitlement is still to be determined, and then their share. They are the people who have made a lifelong contract, share the same house, the same kitchen and the same bed.

Lord Justice Wilson in White v Withers and Mr Justice Moylam, who heard the Imerman case in the court below, are pragmatic family lawyers. They know from long experience how family law operates and how vastly different the issues are from mainstream commercial law. That their views were hatched, matched and despatched yesterday was a sad day for family justice, and for the meaning of the marriage contract, which I believe was devalued by that decision.

There is, I believe, room in our legal system for differing approaches by differing divisions of the legal system. It cannot be right that in the pursuit of justice married couples, whose marriage and commitment to each other, through thick and thin, automatically entitles them to share in all their respective assets, should be treated the same in law as civil entities whose entitlement is still to be decided. The same goes for cohabitants, whose commitment to one another is not enshrined in contract and whose arguments as to privacy and confidence of the other make sense.

To me, this is where the Court of Appeal went wrong. Ironically, they failed to recognise the unique and fundamental nature of marriage, and treated the couple more as cohabitants rather than a couple who are entitled to begin with a 50:50 division of everything, as per the House of Lords in White v White.

If a husband or wife is able to lie to a spouse, and that spouse must then resort to a raft of the most  ludicrous, heavy handed and phenomenally expensive remedies to gain justice, hasn’t the law – to use Mr Bumble’s well-known quote – been made to look rather an ass?

Jim v Mary

And what of the hapless Jim?

Well, John the solicitor finds himself saying, ” Jim, leave all the bank books and the Premium Bonds where they are. Remember what you have seen. If she hasn’t disclosed her little nest egg when her Form E comes in in two months’ time, then let’s go to court and get a search and seize order, which is called an Anton Pillar order. That means I will have to get an independent solicitor and his firm to oversee a raid on your wife’s bedroom drawer. They can take away all the bank books, the Premium Bonds and whatever else they find if it’s all still there – and it will all be perfectly legal.”

Jim furrows his brow. “But that’s going over the top isn’t it, John? How much will that cost me?”

“About £50,000, Jim”, John replies. “Unfortunately, if there is nothing there by the time we get to the bedroom drawer you might have to pay her costs too. Oh, and she might sue you for damages. So add another £50,000 on for good measure. I will put it all in writing to you. But nobody can complain about you, Jim, and this course of action is what the Court of Appeal has said is the right thing to do. They want to see far more of these Anton Pillar orders….Jim??? Are you still there Jim?”

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. The lawyers there, all of whom have excellent credentials, could not have been friendlier.  Our lively session, during which English and American divorce law was compared and contrasted, gave food for thought on both sides.

My topic was Divorce: Discretion v Certainty – a Peculiarly English Approach. Stowe Family Law trainee solicitor Liz Bell, who has been involved in some of our bigger money cases, assisted me with the Powerpoint presentation, as did Andrea Essen of our Children’s Department. The presentation was a whirlwind tour of English divorce law and procedure. I wanted to explain our ethos and approach; I also wanted to examine our law in the context of current procedure.

It was very interesting to note the US reaction to the non-confrontional , non-aggressive ethos that is preferred by our English courts. Examples of this ethos include the lack of conduct issues and the dearth of arguments about the rights and wrongs of parties’ behaviour to one other.  My impression was that here in the USA, conduct counts markedly – one way or the other!

I was asked about remarriage prospects and confirmed that in England and Wales, potential remarriage prospects do not influence a financial settlement. Again, this is different in the USA.

I discussed court procedure in England and Wales, in particular the financial dispute resolution (FDR) hearing, which enables the vast majority of cases to settle without the need for a full hearing. I believe that FDRs work well because they give judges valuable opportunities to be frank and helpful, avoiding further confrontation and saving costs. I also explained, in relation to the meeting of financial needs, how injustice may be overcome by the exercise of judicial discretion afforded by section 25 of the Matrimonial Causes Act 1973.

Prenuptial agreements were also touched upon. I was asked about the approach that a US lawyer should take, if a client had ended up living in England. I discussed the Radmacher v Granatino case and the principle of comity with other countries. My advice? Our courts clearly wish to act in sync with courts around the world. So if a prenup involves citizens from other countries, who have been properly advised by their lawyers, why not? Their own courts would uphold the agreements.

My visit was an immensely interesting experience. During an enjoyable tour of the offices I was shown the coveted corner offices belonging to the senior partners, the private salon for celebrity clients and the ‘war room’ where prep for cases takes place!

I was also proud, as an English lawyer, to reinforce what I believe to be the just and relatively low key values and standards of our legal practice and procedure. Don’t get me wrong: English lawyers know how to stand their ground, but they appear to be less openly aggressive than their US counterparts.

You cannot easily judge, define or gain a comprehensive understanding of another legal system. However you can certainly get a flavour and an approach. I do like the in-house style of US lawyers: some are trial lawyers and some aren’t, but cases don’t have to be shipped out to barristers. It is a sensitive topic with pros and cons, but it was interesting to hear that trial lawyers still need to be fully briefed by their colleagues, even in the same firm.

I suppose that I will soon be back to reality – coping with horrible jet lag, no doubt. Chicago will become a memory; but what a memory! It has been an honour and a privilege to spend time in this city.

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.  This is useful because business values may be artificially inflated or deflated by the client, for a variety of reasons. Because he is an independent, professional advisor, Nick’s eagle eye and “broad brush” approach can keep a client’s expectations in tune with reality. We can focus on taxation, liquidity, settlement and methods of payment – all of them art forms. Payment terms require skill to negotiate so that the client walks away satisfied with the outcome. This is particularly so if that client is seeking a clean break without the prospect of maintenance payments stretching out into the future, or the unwelcome possibility of a future additional capital payment (under section 31 of the Matrimonial Causes Act 1973, which I have examined in a previous post).

The capitalised value of a business is always a tough issue and often contentious. Because it is dependent on the outcome of separate valuations, one spouse may be advised to ask for too much – and the other spouse may be advised to offer too little. A substantial amount of costs can be wasted by concentration on a wholly artificial exercise because the business is not going to be sold. Rather, its capital value will taken into account when considering a capital award for a spouse. When a business is sold on the open market, the transaction takes place between a willing buyer and a willing seller, both of whom are acting for self-interest and gain. In the case of a divorce, however, different principles apply.

This thorny issue was recently considered by Mr Justice Moylan in the case of H v H (2008) EWHC 935.

Mr Justice Moylan is a “safe pair of hands” and his awards, never overly generous in my experience, are unlikely to be set aside on appeal. In this case, the Judge clearly felt that from the outset, the parties had adopted the most extreme of positions. The wife had asked for too much and the husband had offered too little. They were litigating over the capital value of a successful restaurant business, which had been owned by the husband long before this marriage (his second) had taken place, and in which he intended to continue to work.

Two forensic accountants gave differing opinions as to the value of the business. The husband’s accountant stated £1.7 million; the wife’s accountant stated £5.3 million. Quite a difference! The husband’s legal costs, including accountancy evidence, totalled £126,000; the wife’s, £280,000.

The Judge began by quoting from Lord Nicholls in the House of Lords case, Miller v Miller; McFarlane v McFarlane (2006), UKHL 24. “Valuations are often a matter of opinion on which experts differ. A thorough investigation into these differences can be extremely expensive and of doubtful utility…. This is to misinterpret the exercise in which the court is engaged…a broad analysis, not a detailed accounting exercise”.

Mr Justice Moylan stated that in his opinion, to seek to construct an award based on a broad valuation of a business could be unfair – particularly since valuations of private companies “are among the most fragile valuations that can be obtained”.

But how is such a substantial asset in a marriage to be valued? Evidently not by the detailed exercise in which these parties became involved!

Both accountants had managed to agree that an “Enterprise Value” was an appropriate methodology. This is an assessment of future maintainable earnings (FME) and application of a multiplier to those earnings, in order to calculate the capital value of the business. The wife’s accountant, however, contended for FME of £856,000; the husband’s, of £633,000. The wife’s accountant applied a multiplier of 9; the husband’s, a multiplier of 6. The parties then argued about the multiplier and about a number of other complex issues affecting the final figure. The judge patiently considered them all, in the interests of fairness to both parties, but made it clear that he was not validating the exercise.

The Judge decided upon an FME of £725,000 and a multiplier of 6.5, which gave a net business valuation of £2.5million. He found the husband’s involvement of more than 33 years in the business as a relevant pre-marital contribution, and rejected the wife’s application for equal division of capital.

Mr Justice Moylan expressly referred to fairness as the overriding principle.  He assessed the wife’s needs and, although both parties had argued for the wife to be given a clean break, (the husband on the basis of an excessively low capital award, the wife on a near wipe-out of the husband’s capital), found a clean break to be unachievable. He awarded the wife capital and continuing maintenance. Presumably, this satisfied neither party. After all, they had racked up joint legal costs of £400,000!

So what conclusions should be drawn?

Sometimes it is hard for advisors to stand back from their clients and take a birds’ eye view. But in cases such as this, advisors need to remain objective. Fairness requires less subjectivity and more of a meeting of minds.

I would recommend that in most cases, a single joint experts’ report should be obtained to value business assets. My preference is for less analysis, which I find many forensic accountants adopt when preparing their reports. Perhaps this is with an eye to professional liability – it is hard to say. However, I believe accountants could and should be comfortable with a “broad brush” approach.

In a case such as H v H, by agreeing to an even higher valuation than that adopted by the Judge, perhaps that £400,000 could have been better used to meet the parties’ needs. The focus could then have fallen upon how the payment would be made, and over what period. By agreeing the maintenance to be paid until the capital sum had been paid in full, fairness and certainty would have been achieved for both parties. Finally, the spectre of section 31 of the Matrimonial Causes Act 1973 would also have been avoided.

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. Section 31 of the Matrimonial Causes Act 1973 permits somebody who is in receipt of maintenance to apply for a lump sum of capital, instead of continuing payments. This capitalisation of maintenance can be a very attractive prospect. It can be particularly attractive when a recipient is involved in another relationship which, if it turned into marriage, would mean that the maintenance was no more.

In many such cases, a clean break was impossible at the time of the divorce, due to insufficient capital. Years later, the financial positions of both parties may have altered. A husband may have rebuilt his capital and be about to retire. If his overall income is about to reduce, he may well wish to hold onto all of his pension.

I advise those who prefer to pay maintenance to bear section 31 in mind. If they can afford a clean break settlement at the outset, this can be the best course to follow as there will be no ‘comebacks’ in the future.

Even so, some people prefer to pay maintenance. They reason that their former spouses are likely to remarry, whereupon maintenance will cease. They believe that on balance, maintenance is a more cost-effective option.

However, it is important to note that applications for an order under section 31 of the Matrimonial Causes Act 1973 are often made in response to an application to vary maintenance downwards or terminate it.

This happened recently in a case called Dixon v Marchant. The judgment was given by the Court of Appeal on 24 January 2008.

Mr Dixon had been paying maintenance since 1993. In 2005, as he approached retirement, he wished to vary his maintenance downwards. Negotiations ensued about paying a lump sum in lieu, under section 31.

His former wife consistently rejected any suggestion that she was cohabiting. Eventually, the parties settled. Mr Dixon paid his former wife £125,000 to end all liabilities for maintenance. This was probably not as much as she might have achieved in court.

Within a few months, the former Mrs Dixon remarried and became Mrs Marchant. Mr. Dixon applied to the court for the return of his £125,000, claiming that this event was what lawyers call a “Barder” event and as such, he was entitled to the return of his money.

A “Barder” event is something with which I am familiar, having been involved in one of the reported cases on the subject (SvS (2002) 1FLR 992).

Such a case concerns a new event that would have materially impacted on the original settlement. The event occurs within a relatively short time after an award has been made, leave to appeal is made very quickly after the supervening event has occurred. It is also a requirement of such an event that if an order is set aside, no third parties will be adversely affected.

The evidential bar is high. It is vital that any “Barder” case must be dealt with very promptly as soon as the new event occurs, as a delay can be fatal to the case.

In S v S, I represented Mr. S. The late Mrs Justice Bracewell held that the groundbreaking 2000 decision of the House of Lords in White v White was indeed capable of being a “Barder” event. However she found that Mrs. S’s own lawyers should have been aware that the decision was shortly to be made. Instead, they had advised Mrs S to agree to an earlier settlement, calculated on different principles, without waiting for the judgment to come out. As a result, Mrs S’s award was well over £1million too low. My client successfully defended her “Barder” application and did not have to make up the difference. He was fortunate.

By a 2:1 majority, the Court of Appeal this year in Dixon v Marchant found that Mrs Marchant’s remarriage was not a Barder event, and that she could keep her settlement. Lord Justice Ward found that there was no basis at all that the deal would founder, if the wife remarried. Lord Justice Collins concurred.

Lord Justice Wall disagreed. He delivered a judgment with which I agree. He went through the “Barder” conditions, applying them to the facts of this case. They all appear to fit. I think Mr. Dixon was unlucky.

There are a number of other reported cases about Barder events. I think this is a tricky and very interesting subject. The case of Dixon v Marchant also struck me as interesting for other reasons. It raises the question of whether Mr. Dixon was right to try and reduce his maintenance in the first place. The stakes were high, because both parties were at risk of paying all the legal costs involved. Litigating about principles does cost dear.

If you are about to settle your case on a continuing maintenance basis, bear in mind that section 31 of the Matrimonial Causes Act 1973 can loom large years down the line. It can come back to haunt you – or hand you a tidy little windfall as good as a first-class win on the Premium Bonds.

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.

The English civil divorce process takes place in two stages. One half of a couple (the Petitioner) applies for a divorce, after which the court will grant a ‘decree nisi’. In most cases, six weeks later the petitioner can apply to the court for the divorce to be made absolute. It is at this stage that the parties become fully divorced from one another.

However, the court will delay the granting of a Decree Absolute when there is good reason, the most obvious being the lack of financial settlement.

Another reason to delay the Decree Absolute is when one of the parties is also obtaining a religious divorce, and that religious divorce has not yet occurred.

Not every faith group sanctions divorce. Neither the Church of England nor Roman Catholicism recognise it. As a result, these faiths have not established a process for divorce. However, it is formally recognised by other faiths, including Judaism.

In a case in which a religious divorce is also being obtained, it is clearly important to ensure that the marriage is ended under both regimes. Otherwise there would be what English lawyers describe as a “limping” marriage”, whereby parties are still married according to one civil system, but not another. This means that there is an ability to remarry under one regime, but not under the other. Although this may suit one of the spouses, it hampers a party who wishes to remarry under both regimes and ensure that any children subsequently born are deemed legitimate in both civil and religious law.

Section 10A of the Matrimonial Causes Act (MCA) 1973 gives the court power to postpone the grant of a Decree Absolute of divorce until the religious divorce has been obtained. Section10A applies equally to “any other prescribed religious usages” as well as the Jewish faith, and is not tailored exclusively to Jewish divorces. It is aimed at all religions with a divorce process.

Practitioners are rarely experts in the religious laws of their clients. I certainly am not. However, as a divorce lawyer, I do my best to accommodate the needs of all my clients. In the case of a divorcing couple who are Jewish, this can lead to my discussing the case with the local “Beth Din“. This is the Jewish court, which routinely deals with lawyers on this subject.  In practice, the Beth Din will not normally permit a religious divorce between the parties until a Decree Nisi is in place, thus ensuring that there is no “limping” marriage. So it is important for a divorce lawyer to make sure that a Jewish divorce takes place following the Decree Nisi – and only then obtaining the Decree Absolute.

I find that Section 10A works well in practice when required. At the same time, I recognise that perhaps I have been fortunate; in my experience, arguments over religious divorce between parties are swiftly resolved. I appreciate that this may not always be the case. A divorce solicitor may be ignorant of the requirements of the religious law, but he or she must be alive to the possibility of postponing the Decree Absolute until any issues are resolved.  If Section 10A is ignored by a divorce lawyer who is unaware of the possibility of a delayed Decree Absolute, it could lead to a negligence claim from a client who is left unable to remarry within their religion. It is vitally important to ensure that in such cases, both religious and civil divorces occur simultaneously.

At Stowe Family Law, the requirement of any religious divorce is one of the first matters on which we will obtain instructions from our clients. We will also confirm with our opposite numbers that agreement has been reached about this. It matters profoundly to some clients, but to others not at all. Following a Decree Nisi, if there is no religious divorce and one is needed, we will make a Section 10A application.

On a wider stage, I believe that this interplay between the civil law and religious divorce requirements is a great example of the multicultural accomplishments of British society and its lawmakers. It is an example of understanding and attempting to meet the needs of others, without compromising established laws and systems. In my view, this is one of the reasons why our legal system in England and Wales is the envy of the world.