This is a slightly expanded version of my latest post for The Times, which appears on The Experts blog today.

In 2005, the Government asked the Law Commission to report on possible changes to the law in relation to cohabitation. Two years later, the Law Commission’s recommendations for a new scheme of financial remedies were published, after which its report seemed to disappear into a parliamentary vacuum. Last week a brief written statement, from justice minister Jonathan Djanogly, appeared in Hansard. If you look you may struggle to find it, but here it is, buried between a lengthy update about Southern Cross Care Homes and a correction to a previous statement about UK Balance of Payments data.

In this statement, the minister reveals that the Government has “carefully considered” the Law Commission’s recommendations for reform of cohabitation law, but has decided not to take them forward. Two reasons are given:

“The findings of the research into the Scottish legislation do not provide us with a sufficient basis for a change in the law. Furthermore, the family justice system is in a transitional period, with major reforms already on the horizon.”

There you have it: a decision on reforms that could affect the lives of hundreds of thousands of people up and down the country, reduced to just a few short sentences. Perhaps it would have gone quite unnoticed, had it not been for a press release dispatched by the Law Society, which advised cohabiting couples that despite the Government’s “U-turn”, they can still sign binding cohabitation agreements. There was also a terse response from the Law Commission. It was understandable. I can’t help but reflect on all that wasted time, effort and cost spent so far, for nothing.

It is a fact that more couples in the 16-45 age group are choosing to live together than marry. Many of these couples go on to have families before getting married and of those, a good number separate. At present there is no cohabitation law to govern such a split. Instead, couples can only turn to complicated property law in the Chancery courts, or remedies intended for children under the Children Act.

And if one party suffers economic loss and the other prospers as a result of the relationship? Well, that’s the roll of the dice. Often it is the woman who gives up her future job prospects and reduces her earning capacity, to raise the couple’s children. If the relationship subsequently breaks down she can find herself homeless and penniless. Those who work within the family justice system report that cohabitation breakdown, along with all its injustices, is a growing problem.

As a member of the Legal Advisory Group to the Law Commission, which called upon the Government to give new legal rights to cohabiting couples back in 2007, I remember how the Government’s initial request was met with enthusiasm across the family law field. When the report was compiled, the pros and cons of law reform were carefully considered. All involved were acutely aware that the public might equate new laws for cohabitants with marriage, which was not the intent.

So the Law Commission worked hard to produce a balanced report. Its recommendations did not equate cohabitation with marriage, but recognised the urgent need for tailor-made law. It suggested a remedy based on any “economic imbalance” that had been the result of the cohabitation, along the lines of the Scottish model. (Scotland has had cohabitation law in place since 2006.) The Government of the time announced that it wished to investigate how well cohabitation law was performing in Scotland.

Despite Jonathan Djanogly’s dismissal, cohabitation law in Scotland is alive and well. It has been tested on several occasions, most recently in a major judgement in Gow v Grant, handed down by the Court of Sessions on 22 March 2011. In brief: Ms Gow sold her home to cohabit with Mr Grant and sought compensation for her economic loss as a result, following the end of a five-year cohabitation. The Court of Sessions overruled the judgment of the lower court and held that the sale was down to her, not him. Mr Grant had not caused the loss. There was no award.

The judgement reviews the Scottish authorities to date and acknowledges the difficulties the lower courts have in interpreting a new statute. The Court gives guidance, suggesting a narrow interpretation based upon what the statute actually says. Likewise, judges in England exercise their discretion, with interpretation from the higher courts. So why, I wonder, has our Government decided against the implementation of similar law? And why seek to “bury bad news”?

I suspect it has everything to do with the Government’s fixation upon “family values”, and the conviction of many in the Conservative Party that marriage is the answer to society’s ills. Such an approach wilfully excludes couples who don’t happen to be married or in a civil partnership, along with their children.

The Government’s refusal to take the Law Commission’s proposals any further means that upon separation, cohabitants – particularly the principle child-carers – will continue to leave with nothing. Their children will continue to fly below the radar of the courts. Then again, why bother giving people enhanced legal rights, when the abolition of so much family law legal aid will only restrict the public’s access to legal remedies? I suppose that for those rich individuals who object to general equality within our divorce laws, and for those who wish to limit access to justice on the grounds of cost, the continued absence of legal rights for cohabiting couples is to be welcomed.

Little wonder that years of hard work, enthusiasm and hope amounted to less than 150 words in Hansard.

There have been no steps taken against the people who interrupted the concert, and this got me thinking. So what follows is my piece published on Times Law today, with my take on it.

There is also an excellent blog post by Carl Gardner with additional comments by ObiterJ, which readers may wish to consider.

Public disorder is rarely out of our newspapers right now, but it hasn’t been confined to the streets. Last week at the Royal Albert Hall, 7,000 music lovers and countless BBC radio listeners had their own taste of it when an eagerly awaited Proms concert was disrupted by shouting and chanting by protestors who tried to stop the music. So frequent and noisy were the interruptions, the BBC was eventually obliged to take the concert off air for the first time in the Proms’ history.

Those involved in the riots who were judged to have committed disturbances and breaches of the peace have been shown no mercy by the courts, even when there were no signs of violence or theft. Politicians and judges have made it clear that such behaviour will not be tolerated. Back at the Proms, meanwhile, no arrests were made and what happened at the Royal Albert Hall received relatively sparse coverage in the press. Instead it was written off as an isolated, middle class “incident”. So is that what happens when serious breaches of the peace are carried out not by unemployed people in downtrodden areas, but by activists and middle class type at concert halls? Does the rule of law apply to one section of society, but not another?

Unlike the public disorder on the streets, the protest at the Royal Albert Hall was designed to be clever and witty. It followed the BBC’s refusal to cede to a group called The Palestine Solidarity Campaign, which had demanded that the BBC cancel an invitation issued to the Israeli Philharmonic Orchestra. Instead the Prom sold out, with people paying up to £90 apiece for tickets.  On the night the orchestra’s Musical Director, Indian conductor Zubin Mehta, picked up his baton. The soloist, Israeli-American violinist Gil Shaham, picked up his Stradivarius violin. Then around 30 protestors, deliberately dotted around the venue, began a noisy chant about Israel’s “ethnic cleansing” and “apartheid”. They sang their protest to the tune of Beethoven’s Ode to Joy.

The orchestra played on, but the concert was taken off-air and inside the Royal Albert Hall, the “witty” protest turned angry and ugly. There were scuffles with audience members, and one person who was there said that the atmosphere felt “like a riot”. After the protestors were ejected by security, the orchestra received seven ovations.

The identities of those protesters are known, but none have faced any public order charges or any other charge at all. Why not? If this small group of individuals caused harassment, alarm and distress – which it certainly sounds like they did, not just to the musicians but to audience members – why shouldn’t they be held to account under Section 4A of the Public Order Act? When racially aggravated – and if the members of the orchestra deemed the verbal attacks to be racist attacks, they would fit the working definition of racial harassment – such a contravention is capable of attracting two years’ imprisonment at the Crown Court.

I note that the following day in Greater Manchester, another group of anti-Israel protestors – less educated this time, and less “witty” – made its mark. Graffiti was scrawled across houses, bus shelters and the offices of a local newspaper. “Free Israel”, they wrote. “Free Gaza.” “Jew scumbags.” The police are involved this time and the culprits are being hunted. So why are those who interrupted the Proms with similar sentiments and who succeeded in causing disruption and damage not being held to account? What is the difference?

I suspect that the costs of removing that offensive graffiti will be cheaper than the costs of the BBC, and therefore taxpayers, of broadcasting the concert this week minus the interruptions. If the Greater Manchester protestors are apprehended, criminal prosecutions may well follow. Shouldn’t it be the same for the Royal Albert Hall protestors? Or does one law apply to the little man who defaces a bus shelter, and another to the member of the intelligentsia who defaces a classical music concert?

We are in danger of condoning conduct with potentially serious consequences because of the class identity of those who commit such crimes, while refusing to tolerate similar behaviour from those with demonstrably less education and therefore different ways of expressing themselves. It would seem that the rule of law applies to everyone in theory, but not in practice.

Times Law: The Experts

This is my latest post for The Times, which appears on The Experts blog.

Spousal maintenance is the most contentious area in family finance. Ex-husbands bitterly resent paying it and ex-wives fight tooth and nail to keep it. It is a tax-free income that some see as a continuing windfall and others a hard-earned necessity.

I wholeheartedly support the fact that judges have flexibility in deciding how to settle financial matters during a divorce, because a system based upon rigid percentage divisions can make for grave injustice.

However, every so often, judges dig themselves into holes. We have seen it with capital settlements to wealthy wives and also with pre-marital agreements.

Now we are seeing it again.

There is little judicial guidance on the correct period of time for maintenance payments to continue for less wealthy ex-wives. At what point should maintenance cease – if at all – during the joint lives of the parties, assuming the wife never remarries?

It all depends on the facts of each case and the opinion of the judge. Only if the judge is “plainly wrong” is his or her decision subject to appeal.

This problem becomes particularly acute when children are involved. Take a wife whose income prospects, unlike her husband’s, have been damaged following years of full-time childcare. Should she have her maintenance terminated before or even after the children have flown the nest? Should a poorer wife (unlike her wealthier sister, whose income claims have been bought off by a lump sum) be required to go to work, irrespective of the additional pressures it places upon her and her children? Should the husband or the father be entitled to keep everything he earns, despite the permanent disadvantage to the mother of his children?

The recent Court of Appeal case of N v N, innocuous at first glance, raises some very important issues to this extent.

Mrs N agreed to a fixed term of maintenance when she divorced in 2005, despite having two young children. When the fixed term was due to end, Mrs N’s circumstances and those of her children were such that she applied for an extension.

She represented herself, while her husband was able to afford solicitors and counsel. The district judge ordered that the term to be extended by little more than two years, to April 2012, by when her youngest child would still be a minor.

Mrs N appealed. The circuit judge set aside the original order, substituting a further term to August 2015.

A written application to appeal to the Court of Appeal was made by the husband’s lawyers and refused by Lady Justice Black. Mr N was then able to fund an oral hearing of the application at the Court of Appeal. Mrs N, representing herself, attended.

Lord Justice Thorpe granted permission for the husband to appeal. The judge praised Mrs N’s abilities in court, but then re-imposed the April 2012 order.

At least four judges have wrestled with the facts of this case so far. Each judge has their own opinion as to whether or not Mrs N’s maintenance should continue and for how long.

Mrs N is seeking permission to have her case heard by the Supreme Court, and perhaps – if this innocuous case advances that far – their Lordships will seize the opportunity to clarify the law.

Marilyn Stowe is the senior partner at Stowe Family Law

This is a very sensitive and difficult area for any family lawyer. Abuse is a common reason for the breakdown of a marriage. In such cases, both spouses may be happy and successful in public, but in private, living secret miserable lives: one the abuser, the other the abused. As Anna Moore points out, the abused spouse may also be the more successful of the two.

One spouse’s aggression, verbal and/or physical, causes serious erosion of self-confidence in the less dominant spouse. Over time the aggressor will become increasingly aggressive and abusive as his control increases over the weaker spouse. She is less likely to resist and fight back. She has less ability to fight as hard or for as long. It becomes a power game in which the aggressive spouse will always be stronger. (Please note that although the aggressor is male in this example, the aggressor is not necessarily a “he”. At least a third of victims are male.)

Constant abuse makes it very difficult to leave a marriage. Sometimes the abused spouse believes it to be impossible, because she is trapped in a vicious downward spiral. The less self-confident she becomes, the lower her self-esteem, the harder it is to make the decision to leave.

She may try to rationalise the decision: she is staying for the sake of the children. Or she fears he will fight her over the children – and she has no strength or appetite for the fight.  But is it healthy for children to be living in an abusive relationship? Are they not likely to repeat this behaviour themselves, if that is the example set by their parents?

I find that women in this situation are usually very sensitive. They prefer to avoid any conflict and can’t cope with naked aggression at close quarters, whether verbal or emotional. The aggressor spouse may not be perceived in public as aggressive.  He or she may be popular, the life and soul of the party, because the other side of that character is so carefully hidden.

In my experience, if the weaker spouse does manage to consult a lawyer, it is likely to be because her friend or relative has almost forced her to come out of concern for her wellbeing. It is then by no means certain she will proceed. The decision may prove too difficult even though, objectively, it makes sense.

As lawyers, part of our job in such a situation is to recognise it, to assist the client in alleviation of her signs of depression and to help with the restoration of her self-confidence and self-esteem. We may recommend to counselling or perhaps to her GP, who may prescribe a short course of non-addictive antidepressants to restore her mood.

If instructed, at first we will need to keep boosting the client in a positive way, helping her to come to terms with the need to make her own decisions about her private life with confidence – rather than believing she still has to have decisions made for her by a controlling spouse.

Within a relatively short period we will see changes. The client will begin to overcome her fears, start to think for herself, make her own decisions about her future and, eventually, give us instructions with increased confidence. Her health will noticeably improve, her appearance also. If she has lost or gained weight, it will return to normal. She will not only see her spouse for what he truly is, she will also be able to resist him and finally accept that the relationship is completely over.

She’s alpha at work but she’s bullied at home

High-achieving women are being abused by their partners but failing to get help, say experts. Anna Moore reports.

I have a friend, a contemporary, let’s call her Bea, whose career has rocketed ahead of mine and into another stratosphere. She’s an executive — and at work people kowtow to her, say what she wants to hear and laugh at her jokes, regardless of whether or not they’re funny.

At home, though, the picture is different. Bea commands no respect when she walks through her door. Her husband, who fits his own freelance career around their son’s school hours, is more often than not in a bad mood. This can mean that he will ignore Bea and remain upstairs in his office for the entire evening — that’s the preferable option. On other days he will greet Bea with a cutting comment, usually about her appearance: her clothes, her hair, her make-up, her weight. But Bea can handle that and file away any hurt feelings. Occasionally, though, he’ll fly at her.

“It could be that I’m late home,” says Bea, 42. “Or that Ocado had turned up in the middle of the day and I’d forgotten to say that it was coming. Once I hadn’t taken a letter he’d left for me to post on the way to work. He’ll have sulked and sulked and my key in the door is his cue to explode.” Over the past few years her raging husband has broken bowls, dented a door, blocked Bea’s path, pinned her against a wall and thrown items directly at her head (a clock, a bin, a phone.) We all know that most domestic violence remains hidden. It’s estimated that less than 40 per cent is reported to police. A shocking one client in three raises domestic abuse as an issue during Relate sessions. Often it’s not the kind that produces black eyes and a broken nose; it might be bullying, cruelty, gripping too hard while shouting too loud.

But it is not as if these women have no options and no place to go. Bea could pack her bags tomorrow, walk into a fully furnished penthouse and start divorce proceedings. Instead she brushes the behaviour away, excuses it. (Those who know a little of what goes on are used to hearing her dismiss it as sulks and tantrums, infantilising her husband and minimising any trauma.) So how can someone so successful in her working life, who is used to managing difficult people and making unpopular decisions, tolerate such blatant abuse at home?

The leading divorce lawyer and family law blogger Marilyn Stowe isn’t surprised. In fact, she has seen it many times. “These highly successful women who are independently wealthy come into my office and some have been putting on a bit of a façade for a very long time,” she says. “They have been in denial, pretending that everything is fine, when actually they’ve been worn down slowly but surely. When you start digging, you discover a very nasty relationship.” Continue reading at thetimes.co.uk»

This is my latest post for The Times, which appears on The Experts blog today.

What was really happening on Tuesday? Was Ken Clarke’s sentencing policy truly in tatters? Did his proposals ever stand a chance of implementation? Surely not. So was it a “give”, something to throw to the masses, designed to head off the media from digging deep into the real issue of the day: the demolition of so much of our legal aid system?

If so, it seems to have worked brilliantly. The media lapped it up, pouncing on Ken Clark and trumpeting the failure of his proposal to halve the sentences of offenders who pleaded guilty. What on earth was that all about? How could offenders receive only half a sentence? And did that proposal really come from a party that prides itself on its reputation for being tough on crime?

Noting the response of the news teams on TV and the next day in the papers, I can imagine the Prime Minister and the Justice Secretary slapping themselves on the backs. What a job well done! It looks as if they have gotten away with it.

I’m a cynical lawyer. As far as I am concerned, the hype about reducing sentences was always going to be followed by a U-turn. The “story”, however, has gobbled up column inches and made it onto several front pages. It has successfully diverted attention from what is happening with legal aid, and from the plight of some of the poorest and most vulnerable in society, who will no longer have the same rights of access to the civil courts as do their richer brethren. In a bid to save £350 million, the Government is making what The Times has described as “the biggest assault on legal aid in 60 years”.

Who knows how many injustices will now occur? I dread to think of the consequences. Family law, clinical negligence, employment, immigration and housing are all affected.

Yesterday, Ken Clarke threatened to abolish the automatic right of arrested suspects to receive free legal representation in police stations.  Again, I am not sure that this proposal will ever see the light of day. So why make it? Is there more bad news to come?

This is an expanded version of my latest post for The Times, which appears on The Experts blog today.

I was doing some work for the Law Society. I travelled to a small Midlands town, to a high street lawyer’s office next to a greasy spoon cafe. I went in, and met a lawyer whose drive and dynamism knocked me out.

This lawyer dealt only with legal aid cases and frankly, cared only for the clients. There was a chaotic atmosphere and the files were piled high – all light years from the grand offices of Central London lawyers. But there was equal commitment to each client and case, for substantially less reward. There was little doubt about that lawyer’s ability and competence. It was impressive.

Legal aid cases used to provide my bread and butter too, but the cumbersome, bureaucratic process drove me to distraction. Whenever I wanted to take a new step, I had to obtain authorisation. Payments were low and slow in coming. Ultimately, I decided to move on.

However there are thousands of high street practitioners who have continued to soldier on, giving their services to those who cannot afford to pay top rates. They work hard for those in need, and those who are least able to express themselves in court. But these able lawyers are swimming against the tide. The legal aid bill, we are told, is unsustainable. Why so? Why is it so high?

Legal aid used to be within reach of a large proportion of our population. Slowly but surely, the qualifications have been whittled away. Now only the poorest will qualify… but with surprising exceptions.

Mayfair resident Asil Nadir, the former chief executive of Polly Peck, has been granted legal aid to defend a hugely expensive fraud trial. He fled the UK in 1993 after being charged with 66 counts of theft, lived in apparent luxury in Cyprus, and returned last summer to face the music.

In these tough economic times, should the taxpayer fund his defence? I am unconvinced. So why does our system provide apparently ample resources for white collar legal aid, while depriving the needy? If cuts need to made, surely they should be made in Mr Nadir’s case first?

Worse still, the government is proposing further restrictions for the poor and the vulnerable in areas across civil law, such as both parties in abusive marriages, children cases, clinical negligence, education, welfare and housing. The “Sound off for Justice” campaign is valiantly seeking support to stop the cuts, and the Law Society has its own sensible proposals for saving legal aid while also saving money. So far, however, the protests have apparently fallen on deaf ears.

There are those who argue that lawyers are trying to save their own skins. Not so. Even those of us who are not legal aid lawyers are horrified by the plans. We live in a democracy, in which access to justice is extremely precious. Shouldn’t the state assistance we have be shared out fairly?

This is an expanded version of my latest post for The Times, which appears on The Experts blog today.

Marilyn Stowe

As a family lawyer, I am accustomed to representing men and women whose lives have been turned upside down after relationships have broken down. Some of our clients are famous and most are not so famous. However many of them share common ground. Their relationships have been destroyed by indiscretions. They underestimated the consequences.

In my experience, famous men and women are no less prone to temptation than anyone else. They make mistakes. They let their guard slip. They do things in an instant that later, in the full light of day, they bitterly regret. Are they different from any of us? I don’t think so. We are all human beings, and none of us are perfect.

So should celebrities’ indiscretions ever be splashed across the media, flung into the public domain for the rest of us to salivate over?

I am not so sure, just as I believe that divorce cases, many containing “juicy detail”, should always be heard in private. Our courts are being urged to open their doors as widely as possible, but  I would argue that in private law cases, this is wrong. What a client does within his or her marriage should remain private. That includes financial arrangements unless the courts direct otherwise, in cases of extremis when naming is required.

For example, if judgments are to be published because they are part of precedent, then all parties should be anonymised. The private lives of those unfortunate enough to come before the courts should remain private. Is it right that at some point in the future, Beatrice McCartney will be able to read the public judgment of her parents’ financial battle and the comments of the court about her mother? Whose business was it anyway?

Likewise, a footballer is famous for being a footballer. I am not interested if he is happily married or otherwise. What he gets up to in his private life should be a matter for him. The courts understand this and do their best to help.

All would be well except that his fame, whether he sought it or not, makes him a target for all those who, a couple of hundred years ago, would likely have been cheering the arrival of the tumbrils in Paris. Back then, the crowds bayed for aristocratic blood and they got it. Due to their position in society, the aristocrats were seen to deserve such fates. Les Tricoteuses sat close to the guillotine, knitting as thousands of men and women were decapitated. Everybody cheered and the bodies were thrown into lime pits.

In 2011, we think we have changed. But does human nature ever really change? Or is it merely controlled in our more sophisticated times, unleashing itself in a different way?

I am aware that in the face of fierce arguments for the naming and shaming of holders of superinjunctions, not to mention a Twitter storm, my views may place me in the minority.  However I was pleased today when Mr Justice Eady rejected an application to discharge a footballer’s privacy injunction. As the judge stated: “The court’s duty remains to try and protect the claimant, and particularly his family, from intrusion and harassment so long as it can.”

As a divorce lawyer, when I read about the actions taken to stop a story coming out in the press, I think of my own clients and their families – and my sympathies are entirely with those who seek the protection of the court.

Times Law: The Experts