MARITAL SHAKE UP

The law, as ever on the front foot when serving the best interests of its users, is proposing to take a giant leap into the unknown and revisit the Matrimonial Causes Act 1973.  It is only a proposal, and we have witnessed many false dawns in the ensuing 45 years, so don’t hold your breath.

The proposal, which has the backing of a number of legal luminaries, including myself, seeks to remove ‘fault’ from the divorce equation.  On any view, it is somewhat of an anomaly.  One of the divorcing parties must petition for divorce to get the ball rolling, and she [it usually is] must choose one of the five recognised reasons for uncoupling.  They are adultery, desertion, 2 years separation with consent, 5 years separation (no consent required) and unreasonable behaviour, and in that regard, how long is a piece of string?  According to my father, too short to be of any use, and too long to throw away.

The problem about choosing one of these grounds is that one size is meant to fit all, which may not always be the case, and anyway, and this is the point being made, it introduces a confrontational element into the divorce proceedings which is not necessary and may aggravate the already fraught situation and, more importantly, upset the kids.

If fault is removed, or so the thinking goes, this should enable the parties to uncouple amicably.  They are already obliged to agree to mediation in case there is a chance, no matter how small, of rowing back.  However, in my experience, once love flies out the window, so does reason, and all those nit picking irritations which have built up over the years through gritted teeth are brought to the surface and worried over like a dog with a bone. The two front runners are squeezing the toothpaste from the middle and breaking wind in bed.

It may make no difference, but it’s worth a try.

MEAL TICKET FOR LIFE

When the Matrimonial Causes Act 1973 hit the statute books, it was devised to take the sting out of acrimonious divorces and concentrate instead on a fair division of the matrimonial assets. The tabloid press were far from amused, as many a copy was sold on the back of kiss and tell revelations of the great and the naughty, no more so than the Duke and Duchess of Argyll, hotly followed by John Profumo, Christine Keeler and Mandy Rice-Davies, with the emphasis on ‘hotly’.  What a joy!

But I digress.  With the passing of the Act, no fault divorces became the norm, although divorcing couples still had to jump through certain legal hoops to show that the marriage had broken down irretrievably, but that was more show than go.

Over the years, there have been two main issues emerging which have caused the courts to pause and reflect: what should be classified as matrimonial assets;  and when should the marriage be deemed to have ended so that a line can be drawn in the sand?

There are two recent cases that give rise to concern.  The first is the case of the wife who bought a property with her mother’s inheritance.  Her husband, who by all accounts appears a complete waste of space, argued successfully in the Court of Appeal that the property should be sold and the proceeds divided equally.  That did not amuse the wife, and she told the judges in no uncertain terms where they could stick their judgment.  Such was the vehemence of her tirade that the judges were forced to take refuge in their retiring room, leaving Old Albert of Securicor to escort her from the premises.  In fairness to the wife, the husband could demonstrate no good reason for any share of the property, let alone an equal share, save only that he had lived in it before they separated.  In every other respect, it belonged to the wife.  I agree.

The second case concerned the couple who divorced 15 years ago. As part of the divorce settlement, the husband gave the wife a lump sum of £230,000 together with a monthly maintenance payment of £1100.  Not bad if you can get it!  But the wife frittered away the lump sum on various foolish enterprises, and to make up for her incompetence, she went back to court and was rewarded with an increased monthly maintenance of £1440 for life!  That is not a misprint.  How on earth can that be described as fair and equable?  It can’t, but judges who appear to be totally out of touch with reality are persistently trotting out these unfair judgments which make them look foolish and discredit the law they are sworn to uphold.

Baroness Deech, you remember her of course, a cross-bench peer, is promoting a bill which would limit maintenance to five years except in cases of exceptional hardship.  This five year limit is apparently the law in Scotland, where prizing open the sporran in any circumstances is taken very seriously indeed and is being considered for an Olympic sport.

David Osborne is the author of three humorous books on the Law.  His latest book, entitled Order in Court, is now available on Amazon and all reputable bookstores.

order-in-court1

THE LAYMAN’S LAMENT

Gary Lineker.  You may remember him, a competent English footballer from yesteryear who went on to become a television presenter and pundit and who has spent the last three years trying to grow a beard.  No?  Well never mind.  He has just put himself and his second wife through a divorce and complains about greedy lawyers inflating their fees and engendering hate between the parties.

As  a lawyer, I have to declare an interest.  This is not the first time I have heard complaints about lawyers’ fees, and let’s face it, nobody likes paying legal fees.  Like lawyers, they are a necessary evil.  The problem about Gary’s complaint is that it is borne of ignorance about the system.  It’s not just about lawyers, it’s about going to court when the parties cannot or will not agree, and once that is inevitable, the good lawyer will ensure that his client’s case is put as strongly and as forcefully as possible.  This needs preparation and it needs proof.  You don’t simply turn up and proclaim that the sun shines out of your client’s posterior and he, or she, is as pure as the driven snow. That’s not how it works, and if it did, the law would be an ass.

Gary has been down this road once before, so he should know the routine and the pitfalls.  Let me assure him that lawyers are only involved where the parties cannot agree and where mediation has failed.  It is amazing how petty divorce proceedings can become.  When love flies out the window, so does reason.  I remember many years ago when all the ducks were in a row and we were ready to sign off and go home, the parties would not and could not agree on who should have the mechanical Father Christmas who, when wound up, said: “Ho Ho Ho, Merry Christmas, grow up and get a life!” The judge was asked to exercise the judgment of Solomon, so he gave Santa to the wife, gave £12.99 to his usher who went out and returned with a brand new Father Christmas which he gave to the husband.

Lineker’s divorce may have gone smoothly without the need to consult a lawyer, but to suggest that divorcing couples would be better served without a lawyer is wrong and naive.  If a lawyer overcharges on his fees, they can be appealed and separately assessed by the court.  If they are deemed excessive, they will be reduced.  In Lineker’s case, it’s the same old mantra that if you don’t like the message, you shoot the messenger.

As a football pundit, he should know that it is sometimes better to keep his mouth shut and appear foolish than to open it and remove all doubt.  Leave the law to lawyers Gary, and stick to what you know.

David Osborne is the author of three humorous books on the Law.  His latest, entitled Order in Court, is now available in all reputable bookstores and on Amazon.

order-in-court1

LOVE AND MARRIAGE

It is one of the inevitable consequences of daily journalism that in many cases, newspapers rarely offer more than bite-sized gobbets of information and comment, and in so doing, can give a misleading impression of what actually transpired.  For many who flick through the pages, it’s all to do with headlines.  If the headlines don’t grab the attention, the reader moves on, making the common goldfish look positively intellectual.

I had a similar experience with a blog I posted not so long ago, about drink and consent and rape.  The national headlines took one sentence out of context, and all hell broke loose.  After the dust had settled, it was clear that many who offered an opinion hadn’t bothered to read the blog in its entirety.  Such a pity, as it was worth reading.

Against this background, my attention has been drawn to a recently reported case in the Supreme Court, with the headline: “Rags to riches: ex-wife claims hippy’s fortune 23 years later.” Perhaps as an example of poor headline grabbing journalism, under Profile the judge who gave the lead ruling was described as Lord Justice Wilson instead of Lord Wilson.  This is not simply a distinction without a difference, as Lord Justices sit in the Court of Appeal and not the Supreme Court, and in the final paragraph, Lord Justice Wilson had the support, inter alia, of his doppelganger Lord Justice Wilson!  Very shoddy, and this from a newspaper which has built a substantial reputation as the publisher of The Times Law Reports.

Far from condoning ‘gold digging’ if this was ever the ex-wife’s intentions, the Supreme Court disabused her of this in pretty short order, and instead concentrated on the merits of her claim.  It is settled law, so hardly breaking new ground, that in the discharge of its duty the court will be required to have regard to “the contributions which each of the parties has made … to the welfare of the family, including any contribution by looking after the home or caring for the family”. Such contributions were not limited to those made prior to the separation or even during the marriage. The wife strongly relied on her care of their son Dane from 1985 to 2001;  her care of her daughter Emily, treated by her ex-husband as his own daughter from 1984 to 1994; the absence of any significant financial or other contribution on the part of the husband to their care during those years; and the conditions of poverty in which she was constrained to provide such care to Dane and Emily during those years.

The ex-husband caviled at these proposals, indeed it was and remained his position that he owed his ex-wife absolutely nothing, and had fought her application tooth and nail in the High Court and the Court of Appeal as well as the Supreme Court.  What he had spent on expensive lawyers was more than enough to compensate his ex-wife for her years of deprivation and child care under the most difficult circumstances.

If the ex-husband had come to me for advice, I would have reminded him of what Lord Denning, my judicial hero, once said many years ago:  “That might well be the law, but is it fair?” So shut up, put up, and do something decent for a  change to make a real difference.  You can afford it.

Postscript:  I have now learned from an informed source that the ex-husband’s costs to date are in the region of £500,000.

SHE WHO SHOUTS THE LOUDEST

Sunday the 8th March was the day on which my daughter returned from three years in Ghana, and very happy we were to see her back for good.  It was also International Women’s Day, and here in London there was a march, no doubt with a lot of shouting by the same Feministas who were baying for my blood the other week, and who are now baying for somebody else’s blood.

There were a few snippets of interest from the gels. Emily Watkins, the child star of the Hogwash series where most of the kids fly around on broomsticks, was seething with rage over threats to release naked photos of her even though apparently there were no photos to release, so I struggled to follow the story or the point of it all.  Then there was Nicky Morgan, a female politician, who objected to being called ‘love’ by a male politician.  Come on love, you could have been called a lot worse, and probably have been in your time!

Being sexually correct is like tiptoeing through a minefield.  No matter what you say or how you say it, if you’re a red bloodied male, some woman is going to take offence. A few examples will suffice: you can’t call a woman a lady any more, it’s condescending and stereotypical.  If you are in the arts, especially if you tread the boards, you are not an actress but an actor.  Make of that what you will. If you give up your seat for a lady, sorry, I mean woman, you do so at your peril, and the same applies to holding open a door, or standing up when a lady, sorry I mean woman, enters the room. By the same token, you do not stand behind her chair to help her sit down.

So what about us red bloodied blokes?  Do we have an International Day?  No we do not! This surely is blatant sexual discrimination!

On a more serious note, I have been exercised recently on divorce and the impact this has on the children of a broken marriage. Where agreement on child support cannot be reached between the parents, the government provides its own service in the form of the Child Support Agency. I will not begin to burden you with the twists and turns of the legislation which crystallised around the Child Maintenance and Other Payments Act 2008, save only to say that a new independent corporate body called the Child Maintenance and Enforcement Commission (‘CMEC’) was set up with responsibility for running the statutory child support scheme from the Secretary of State (i.e. the CSA) from 1 November 2008. Quite what the Government hoped to achieve by this move was never entirely clear. However, whatever it was, it did not happen. On 31 July 2012, CMEC was abolished, and the responsibility went back to the Secretary of State (in the guise of the Child Support Agency).  This had no effect whatsoever on any cases that were ongoing. Indeed, users of the service may have been blissfully unaware of all these changes, as throughout the CMEC period, the CMEC continued to refer to itself as the Child Support Agency in its letters to service users, explaining that this was its ‘operating name’.

So there you have it, or not, as the case may be.  But what is clear in the great sexual discrimination debate, the government, and those who administer the child support scheme by whatever name they choose to be known, is that the mother is favoured at the expense of the father, and for no good reason.

Where there is a clear case of the absent father not shouldering responsibility for his child, it is perfectly right and proper to favour the mother with whom the child lives.  But where the child divides his time equally between his parents, and where the parents make an equal contribution to the child’s welfare and support, there is still an inbuilt prejudice against the father.  It is a prejudice that dare not speak its name, but it is there nonetheless, and causes unfairness and at times distress where a more sympathetic approach could reap dividends.

In the final analysis, it is the child’s best interests that should prevail, and this prejudice and imbalance against the father is not only unfair, it is also counterproductive.