My first client of the New Year contacted me whilst I was in Central London for the New Year celebrations.

On New Year’s Eve, at 11.30 pm I was snug in my fleecy dressing gown, cosily watching the freezing crowds on the Embankment on television when…. we decided on the spur of the moment to dash there ourselves to see in the New Year!  We quickly got into some warm clothes and rushed into the cold. We arrived with our champagne and plastic flutes, just in time, because at midnight the London Eye was lit by the most spectacular firework display,- shortly after which my parents telephoned to say “We’re watching London on the telly but we can’t see you….!” Not unexpected in a crowd of hundreds of thousands of people!

The excitement of that night was sadly at odds with the new client meeting. The lady lives abroad and she too was in London for the New Year. She was about to divorce and, although she and her husband had separated on several occasions during the course of the marriage, this time it was final. She produced an agreement she had signed: a post-nuptial agreement.

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To my mind, the CSJ has jumped firmly onto a conservative (with a small c) bandwagon. I would go so far as to say that its proposals are reminiscent of the mindset of the American politician Sarah Palin, whose extreme opinions may have helped propel Barack Obama to victory.

You can read the CSJ’s report here. When I read Iain Duncan Smith’s comments about family law reform, my heart sank. They are acutely traditional and backward-looking. They indicate a refusal to face up to the overwhelming social changes that have affected millions of people and are here to stay. If this well-meant but unworkable report is really what the Conservatives may inflict on us if they win the next election, heaven help us.

So why do these proposals concern me so? Some are not too bad in theory, but are high falutin’, idealistic and incompatible with the real world. They will never work.

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Sir Mark Potter’s appointment in April 2005 to head the Family Division came as a surprise. He arrived apparently almost new to family law, having specialised in commercial law, and his appointment as head of the entire Family Court system was viewed by many commentators as unexpected – to put it mildly.

While there were those who thought he’d merely stay unnoticed in the background for a few years until he quietly retired, I’m pleased to see that hasn’t happened. Sir Mark seems to enjoy his job, giving judgments with relish, and those that I have seen are sensible, non controversial and clear.

He seems to be fair minded, with an instinct for what is “right” and he does his job in a straightforward way, lacking snobbishness and arrogance. Today, in an interview with the Times, he has given his backing to opening up the family court system in certain cases where the media have hitherto been forbidden- and closing them to the media in others. And I’m delighted he has.

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I was interested to read an excellent article called Pre-nuptial agreements – a rethink required in this month’s Family Law journal. By Christopher Sharp QC of St John’s Chambers in Bristol, it contains an interesting review of the law in that area.

He begins with the famous case of Hyman v Hyman in 1929, where the House of Lords ruled that two parties could not agree to exclude the jurisdiction of the court, a position which remains to this day.

It means that in England and Wales, a prenuptial agreement will not be automatically upheld. Instead, an agreement of this kind is a matter for the court to take into account.

Since then various cases have sounded judicial warning bells, with judges questioning this approach, while informed judicial thinking has no doubt helped to shape the recent reference to the Law Commission who are examining whether a change of law is required to make these types of agreement automatically legally binding.

Mr Sharp canters through current law, including some well known cases such as Crossley v Crossley,(2008) 1FLR1467, where predictably the Court of Appeal indicated it was likely they would uphold the agreement, recognising that each party was in their own right a multi-millionaire, several times married and divorced. As I have previously posted, unfortunately the court only had the opportunity to withness intitiall skirmishes, as Mrs Sangster did not wait for the final ruling before abandoning her challenege.

It is clear that parties to a PNA should not assume they are unlikely to be upheld. To the contrary, it seems clear that PNA’s will be upheld – or at least parts of them -provided they are not unreasonable.

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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. Continue reading »

“The Courts have been waiting eagerly for a pre-nup test case like this…”

Pamela Harriman the late daughter-in-law of Winston Churchill was as renowned for her political foresight in supporting the then unknown but coincidentally charismatic and good looking Bill Clinton for the US Presidency – as she was for her string of incredibly rich lovers and husbands. 

It may be wrong to place the undeniably stunning Susan Crossley, nee Sangster (racing magnate), nee Lilley (of Lilley and Skinner shoe empire fame) nee Nicholson (Kwik Save co-founder) into the same category. However, this serial divorcee who is seeking a share of her last husband’s reputed £45million fortune despite signing a pre-nup agreement – has just found out to her cost that the Courts are not impressed with this conduct.

We may be witnessing a change in the Court’s approach to wealthy wives who have made little or no financial contribution to a short, childless marriage. I never understood why such women walked away with great riches, and I still maintain that the House of Lords award last year to Melissa Miller – who in her early 30’s reaped a £5million settlement for a two-year marriage to which she had not contributed financially – was wrong and excessive.

I hear ‘on the lawyer’s grapevine’ that the Courts have been waiting eagerly for a pre-nup test case like this – and voilà! ­ Continue reading »