Cuts to family law legal aid, prenuptial agreements, Tchenguiz v Imerman… Regular readers will have noted that I hold some strong views about the latest family law developments and their implications for divorcing couples up and down the country. So when Solicitors Journal invited me to contribute an editorial about the “key issues facing family lawyers right now”, the biggest challenge was to fit everything within my allocated column inches! You may be pleased to hear that this family law blog gets a mention.

Justices are fiddling with top-dollar divorces while normal families burn, says Marilyn Stowe

I have never known a summer like this one. For a family lawyer it is like standing in no man’s land, with the ‘haves’ on one side and the ‘have nots’ on the other. In more than 25 years I have never seen family law riven by such manifest inequality.

At the height of the holiday season, the Legal Services Commission (LSC) has slashed the number of firms offering family law legal aid by 46 per cent – from 2,400 to just 1,300. Pity the legal aid family lawyer now returning from a hard-earned summer break. The charter flight was probably delayed; the lawyer was probably laden down with kids and suitcases. They get up early to go into the office and face the correspondence that always arrives when you are away. But this time that correspondence is far, far worse: the lawyer has been thrown out of a job.

The LSC is putting lawyers out of business with the swing of an axe, while telling the media that it is “putting quality of services above cost”. I am pleased that the public is not buying this glib argument. The truth is that for clients, particularly those from less well off or disadvantaged backgrounds, justice has suddenly become less accessible than it was. Now it will be about having the means, while an already overloaded service collapses into meltdown. In the meantime, how many tragedies will there be?  Continue reading»

This week’s edition of The Sunday Times carried a lurid headline, “An end to the goldmine divorce”, with accompanying pictures of the heiress Katrin Radmacher and her former husband Nicolas Granatino.  The latter couple’s spectacular and hard fought case involving the validity of a prenuptial agreement, made in Germany between a German and French national living in this country, is due to be the subject of a judgement by the judges of our Supreme Court , which is expected to give a general steer about the validity of prenuptial agreements in England and Wales.

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.

Have you ever been to a wedding and on the surface, everything has been perfect? The venue, the dress, the food, the guests all look gorgeous; the bride and groom are blissfully happy, and their bridesmaids and flower girls with baskets of posies are enchanting? Could you, for example, imagine a better start to any marriage than the stunning, funny YouTube Wedding Entrance Dance (above)? Isn’t it fabulous? Isn’t the music wonderful? I don’t know whether or not that couple is still happy, but I certainly hope they are. They deserve to be, with friends and family like these.

In other cases, fortunately fewer in number, do you have that feeling that something isn’t quite right? Do the bride and groom want the same things for one another? Do they have similar goals and values? Do they come across as a couple who will stick together through thick and thin and, in 50 years, be celebrating their golden wedding?

When a divorcing couple finally meets up in the divorce process, whether at a meeting or in court, it’s amazing to me how most appear to have absolutely nothing in common with one another. There is nothing about them that makes them seem as if they could ever have been a real-life couple. It sounds awful to admit but sometimes, at a wedding, that is exactly how I feel about the bride and groom.

Don’t get me wrong: there are many marriages I attend that I am certain will remain rock solid. But there are others about which I have been less certain – and the outcomes have been sadly predictable.  Unfortunately, as I don’t seem to have been proved wrong yet, a word to the wise: it might be better not to invite me to your wedding if you don’t want a candid opinion, by which time it will be too late.

I recall acting for one bride who expressed considerable misgivings and wanted a prenuptial agreement in place. When I suggested that she might be better off not getting married at all, her parents both piped up that they had spent too much money on the wedding for her to back out. Three years and one child later she returned – and that prenup was successfully enforced. Continue reading »

Stowe Family Law’s International Family Law department is as busy as ever, and we have also seen a steady rise in the number of enquiries about prenuptial agreements. This, I believe, has been prompted – at least in part – by last year’s ruling in the Radmacher v Granatino case, which involved an agreement made between a German heiress and her banker husband.

David Charter, Europe Correspondent at The Times, contacted me to ask for thoughts on another landmark ruling in a German case. The story appears in today’s newspaper.

German ordered to repay house deposit to his in-laws after divorce

It is not just the grasping ex that Germans must contend with during a divorce. Now it is the in-laws as well.

Judges in Berlin yesterday ordered a man who kept the family home to pay back a gift of €29,000 (£25,000) from his in-laws that had helped the couple buy the house.

The ruling by the Federal Court of Justice has been interpreted as a landmark judgment which could allow in-laws to reclaim presents given to their child’s spouse if the marriage breaks down.

Judges said that the “contractual basis” of such presents depended on the in-laws’ child being able to enjoy the fruits of the gift. That basis no longer applied after a divorce.

“If the child benefits from the gift for a long period of time (for example if the couple lives together in a house donated by the in-laws), then only a part of the gift must be paid back,” the judges said in their ruling.  Continue reading»

The latest UK divorce statistics show that a marriage ending in divorce has, on average, lasted 11.7 years. This has given rise to a new term: the “11-year itch”.

So why get married? Because it is still seen as the right thing to do? Because it legitimises children? Because it gives out a strong image of stability?

Why 11 years? Is it because this is the average length of time it takes to become established in a marriage, to have children, for those children to reach school age and for the marriage to go stale?

This could be one explanation – and yet the number of people who are aged 60 or over when they divorce – so-called silver divorce – has also increased. I think it shows a growing attitude in society towards marriage as something that is disposable when it just doesn’t fit anymore. People live longer and life doesn’t necessarily begin at 40 or 50 or even 60. It begins when you, as an individual, make a decision that is about you and how you live your life.

Since 2000 and the case of White v White the courts have been viewing marriage as a business partnership like any other. Think about it this way: 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 »

If worst comes to worst, make sure you have back-up.

If your intended spouse is a foreign national and you are going to move overseas to be with them, are you aware that if your marriage breaks down, you may be unable to return home to your family with your children?

You could, for example, be held to a pre-nuptial agreement in a foreign language that you did not understand when you trustingly signed it. What if it makes no proper financial provision for you or your children?

You may be submitted to the mercy of a foreign court – a religious court, even. What if it enforces a decision weighted against you, a decision that a court in your home country would not contemplate? At best, your departure would be authorised and you would then have to uproot your children and change their entire way of life. 

At worst, that court’s decision could leave you in a terrible situation: legally unable to leave that country with your children.  Continue reading »

It appears that I’m not the only one with strong views about pre-nuptial agreements. The FT Weekend Magazine interviewed me for its lengthy cover story on this controversial subject, published this weekend.

The spoils of war

By Richard Tomkins

Pre-nuptial agreements may lack romance, but at least they make divorce a less messy business. That’s the theory, at any rate – the problem is that English law is almost unique in refusing to recognise them. Isn’t it time we made breaking up easier to do?

 (Extract)   Pre-nups may seem the ideal solution to the vagaries of the English divorce system, and Resolution, which advocates a non-confrontational approach to divorce, is strongly in favour. But not everyone is as enthusiastic. The most common criticism is that pre-nups are “unromantic” because two people who really love each other don’t go into a marriage wondering whether it will last. The Church of England says: “Christians believe that marriage is a gift from God. In the marriage ceremony, the couple make a public declaration of a life-long commitment to love one another, come what may. To anticipate a marriage’s breakdown before it has even begun completely undercuts its Christian basis.”

Marilyn Stowe, a high-profile divorce lawyer with her own firm, Stowe Family Law, says strains may arise where, as is typically the case, the pre-nup is imposed by an economically stronger partner on an economically weaker one. “Personally, I wouldn’t marry a person who wanted to impose one on me,” she says. “If you knew that your spouse, whom you were supposed to trust 100 per cent, had imposed that on you, wouldn’t it affect the marriage from the beginning? And if the agreement was for a period of years before it came up for review, wouldn’t you be thinking about what was going to happen at the end of that period – whether you were going to be chucked out? Continue reading »