I have been reading a judgement that has recently been handed down by brand new appointment to the High Court Bench, Mr Justice Mostyn. I have been eagerly looking forward to what he has to say from the Bench and I’m pleased to say he certainly has not disappointed this reader. In this case he touches upon a subject that is often considered taboo, namely the competence of some of our judiciary. I should emphasise from the outset my own belief that the vast majority of our judges are indeed highly competent and experienced.

But Mr Justice Mostyn appears to be unhappy with the actions and findings of a District Judge below in a bitterly contested children case. That the case was fraught with difficulties, there is no doubt. But it is the manner in which it was dealt with by the judge that concerns him.

This case included a total of 17 days of hearings over a lengthy period. Thirteen other witnesses gave evidence, there were 300 pages of handwritten notes, a court transcript of the evidence running to over 1600 pages, and costs estimated at £120,000 for the father, who was paying privately. Similar sums were spent on the legal aid budget for the mother and the court-appointed Children’s Guardian.

It is unusual for an appellate court to set aside findings of fact in the lower court on the basis that the original judge is in a unique position to make those findings, having actually heard all the evidence. However, Mr Justice Mostyn set aside all the district judge’s findings and then enquired whether it was legitimate for him to conclude that “there was in fact no purpose to the inquiry at all”.

So it seems that nearly £400,000 – including a substantial sum of taxpayers’ money – was spent on a completely useless exercise. Ouch!

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It was more than a year ago when I first blogged about Agbaje v Agbaje. (See: London is the “divorce capital of the world”? Think again!) This drawn-out case involves a couple who married in 1967, gained British citizenship, separated in 1999 and divorced in Nigeria.

Had the case been heard in England, Mrs Agbaje would have received at least half of the couple’s assets. As it was a Nigerian court left her virtually penniless, with her former husband retaining assets worth £616,000. The case has been in and out of our courts for years now, with Mrs Agbaje seeking a fairer settlement here in England.

Today the Supreme Court ruled in her favour – and I was delighted. So when journalists contacted me for comment, I didn’t exactly mince my words (below). UPDATE: Mrs Agbaje’s peerless Queen’s Counsel, Nigel Dyer QC, tells me that the Supreme Court ruled 5-0 in her favour.

I don’t necessarily share the same opinions about matrimonial jurisprudence as Frank Arndt, Head of our International Law department, who was quoted in The Lawyer. We hail from differing backgrounds: mine is rooted in the common law with discretion as its key, whereas German family law is strict and codified. And the difference in our approach actually works well in the office, where we can advise clients from differing perspectives.

Incidentally, I have never been keen on the description of London as the “world’s divorce capital”. Even though Stowe Family Law is opening a new London office, I feel obliged to point out that good settlements aren’t curtailed by the M25!

Nigeria divorce judgment attracts attention

By Jane Croft

Law Courts Correspondent

The Supreme Court reinforced London’s reputation as “divorce capital of the world” after it found in favour of a Nigerian woman who took her case to the UK courts after disputing the divorce settlement she was awarded by a Nigerian court .

Family lawyers said the keenly watched judgment could open the floodgates for wealthy spouses in “big money” divorce cases who are unhappy with divorce awards made by overseas courts to seek a bigger payout in the UK.

London has been dubbed ”divorce capital of the world” because recent changes in the law meant wives are now favoured in big money break-ups.

The Supreme Court ruled that Sikirat Agbaje had not received an adequate financial settlement from her barrister husband when the couple divorced in Lagos in 2003 after 38 years of marriage. Continue reading»

As we bid farewell to the Noughties, I pose the question: which case of the past decade has had the greatest implications for family law and its practitioners?

For me it is White v White: the decision of the House of Lords, delivered in 2000. This was when the concept of equal sharing became the accepted starting point (and usually the finishing point) for financial settlements between a wealthy divorcing couple, irrespective of one party’s role as the bread winner and the other party’s role as the homemaker. Gone was the entitlement of the breadwinner (usually the husband) to retain the lion’s share of the family wealth. The court made it clear that no distinction was to be made.

That decision is now ten years old. With the benefit of hindsight, has White v White unwittingly accelerated the decline of marriage in English society? In short, was it the right decision for our society as a whole? It is not a simple question to answer. Continue reading »

 A recent case involving the fiery chef Marco Pierre White has sent shivers down the spines of family lawyers.

Last week White, who has been estranged from his wife Mati since 2007, won his appeal against a High Court ruling that had halted his bid to seek damages from his wife’s lawyers for wrongful interference with his property.

The action relates to documents including a contract from P&O and a heartfelt letter from White’s daughter by an earlier marriage, which White said he had never seen until the originals were produced by his wife’s lawyers in court. In the Court of Appeal, Lord Justice Ward noted that Mati White had removed documents following alleged threats from White – which White denies – that she would not get a penny and that he would “pull the plug” on everything.

Full disclosure

In my next post I will examine the judgment in greater detail. In the meantime I would like to take a look at disclosure and clients’ concerns. In matrimonial proceedings both parties have an obligation to provide full, frank and clear disclosure of their financial position to the court.

It is common for clients to seek advice as to the steps that they may take to collect evidence. This happens when a client suspects that a spouse will not provide full disclosure. In cases such as these, clients often want to turn detective and uncover evidence that they believe will otherwise remain hidden. Continue reading »

 A recent headline in The Daily Mail read: Husband who became a millionaire AFTER divorce not obliged to give ex wife more money, judges rule. This was the Walkden case, heard in the Court of Appeal, which was described by one of the barristers involved as “the flip side of the decision of this court in Myerson v Myerson“. I don’t agree with that description.

Newspapers reported that the judgment in this case was academic, because the parties had already reached a further financial compromise before the ruling in the Court of Appeal was made. In fact, I believe the judgment has important implications for all parties and their lawyers. This is because the safety net to set aside court orders has all but been removed. Although it is not my practice to comment publicly on my clients’ cases, I intend to make an exception referring only to facts which are in the public domain. I would stress that the advice and client examples I give thereafter are not connected with that case.

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Older couples, especially if they have been widowed or married to others, often don’t wish to live together. They prefer to marry.

I have found, however, that those who enter into such marriages are often oblivious to the financial consequences that can be incurred if the relationship breaks down at a later date. The risks are all the more acute when one party is much wealthier than the other.

Let’s put aside the dependency claim that the less wealthy party has against the other on that person’s death. Good legal advice should ensure that a carefully drafted will can avoid nasty claims between a dependent co-habitee – whether married or not – and the family of the deceased.

Instead, let’s consider what might happen in a worst case scenario, if the marriage breaks down. It’s a gloomy approach, I know, but it is worth bearing in mind that second marriages have a higher failure rate than first marriages. This may be because in some cases, a new spouse is unlikely to be warmly welcomed into the other’s family, giving rise to bitter arguments.

If the parties were simply cohabiting then, unlike on death, there is no entitlement to any form of provision. They go their separate ways, taking what belongs to each of them. A cohabitation agreement and trust declaration at the outset can sort out how asset and property division will occur in the event of a breakdown.

But what happens if they are married? The case of MD v D (2008) EWHC 1929 is a salutary reminder of the financial pitfalls of a short marriage between older couples. Continue reading »

From the Guardian’s comment is free blog, 07/04/2009.

Brian Myerson should abandon his bid for his £9.5m divorce settlement to be set aside, but he’s a risk-taker.

By Marilyn Stowe

The City tycoon Brian Myerson has been pilloried in the press after failing to convince the court of appeal to set aside the £9.5m divorce settlement that he must pay out to his former wife. He argues that the economic downturn has “rendered his divorce settlement unfair”, because it will now leave him half a million pounds out of pocket.

In truth I feel a little sorry for Myerson. As a family lawyer, I have encountered many men of his ilk. They are sharp-suited, high-flying Big Boys: fabulously confident, fabulously wealthy and fabulously successful. They play hard – and they always play to win.  Continue reading >

Wives and mothers usually wish to remain in the marital home – but it isn’t always a good idea to postpone a sale.

A Mesher order is a court order that postpones the sale of the marital home and gives a chargeback to a husband exercisable on the occurrence of specified events. It originated in an eponymous case in 1980, when the Court of Appeal permitted the wife to remain in the marital home with one child until the child was 17 or further order of the court.

When there are no children, the court can still make a similar order for one party to remain in the marital home and thus postpone the sale. This is known as a Martin order, after an eponymous case in 1978, when the Court of Appeal held that the wife could remain living in the property for the rest of her life. The court postponed the husband’s interest from being realised until then, having found that the husband had no immediate need of a capital sum, and the wife would have had insufficient equity to re-house herself had the marital home been sold.

These types of orders were common in the 1980s and 1990s, when there was a need to keep less wealthy mothers and children in their homes, because there would have been insufficient capital to re-house them. They fell out of fashion because they were fraught with difficulties. These difficulties surfaced when the time periods expired and the houses came to be sold. Continue reading »

I often see clients who are looking for second opinions on their cases. Many of them have started off with local solicitors, or solicitors they have known for many years. Typically, such a client had been brimming with confidence at first, and had been assured that family law was straightforward.

After a few months, however, the client will have found themselves no further forward in their divorce, and cannot see a way out. Frequently the only practical advice given to them is, “let’s look at a settlement when we know the whole picture”. Bogged down in paperwork which purports to give “the whole picture” when it doesn’t, they begin to despair. The solicitor remains reluctant to give advice about what settlement should be in the offing. With the process dragging on, costs are mounting.

I don’t wish to blow my own trumpet, but family law is much more complex than it may appear to be at first sight. I make this point to lawyers rather than clients, because lawyers tend to think it is a relatively easy field of law. It isn’t.

I met one such client this week. He has been having sleepless nights and fears that there will be nothing left after his wife – whose solicitor certainly knows what he is doing – has finished with him.

So what goes wrong? In my opinion there are two important factors, which people should know about before – rather than after – they embark on divorce proceedings.

Firstly, Continue reading »

From the Guardian’s commentisfree… blog, 18/03/2008.

Heather Mills may have done well out of her marriage to Paul McCartney. But to get there the couple waged a vicious and unnecessary war

By Marilyn Stowe

Millions of spectators round the world have been following the divorce battle between the McCartneys. It has grabbed media attention like no other case since the divorce of the Prince and Princess of Wales.

It was vicious. It was played out for all it was worth. On the one side: the abhorred but greatly distressed wife, who acts and speaks before she thinks. On the other: a tight-lipped phalanx of the most expensive black-suited lawyers in the country, out for a big win.

And now that it is over, it seems clear to me that there are no winners. Instead, everyone has come away humiliated.

McCartney publicly dumped Heather Mills. He issued proceedings against her based on her “unreasonable behaviour“. Knowing her as well as he did, what did he expect her reaction would be? Deeply wounded, she emerged to fight back in every way she could – and the parties went to war.

If ever there was a way not to conduct a divorce it was this.

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