Month: October 2018

Why we all need to support Justice Week

Posted on October 25, 2018 by - DIVORCE, FINANCES

Those working in family law can see on a daily basis that all is not well in the legal world.

Monday sees the launch of Justice Week, a way of ensuring those problems are highlighted to a much wider audience.

Justice Week is a new initiative setup by the three legal professional bodies. The Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx) argue that many parts of the system are at breaking point. And now is the time to make a strong case for why they are fundamental to society.

It’s more than five years since the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came in to force. It brought wholesale changes to the legal aid system for family law.

It removed that vital financial assistance for so many people. Now, to end a marriage and sort out financial and familial affairs, most must be prepared to pay. The alternative is to represent themselves.

2017 figures show the proportion of family law cases before the courts in England & Wales where neither party had legal representation was 36%, up by 19% in just four years.

Justice Week: October 29 – November 2

In an unusual move this month, a leading family judge spoke out highlighting the difficulties faced by these ‘litigants in person’ because of legal aid cuts.

His Honour Judge Stephen Wildblood QC, the most senior family court judge at Bristol Civil Justice Centre told the BBC.

“If anyone watching this can imagine themselves in court faced with somebody that they once loved on the other side of the court, supported by a barrister, and they are on their own, then I think the point answers itself. It is very difficult indeed for them.”

Problems are not confined to family law. The chronicling of issues felt at our criminal courts have been turned into a best-seller by The Secret Barrister.

Only by getting the effects of what’s happening out to this wider audience is there hope of change.

Until this issue becomes widely recognised by society as whole it can be minimised as simply the legal profession moaning about its lot.

Campaigners want to at least restore funding for early legal advice. The Ministry of Justice is due to publish its review of LASPO by the end of the year.

Justice Week runs until Friday November 2.  We’ll be taking part to highlight the issues and be part of a much-needed conversation about solutions.

We’ve previously written about the changes to legal aid – ‘The erosions to this system have been gradual but ultimately seismic.’

#JusticeWeek18

 

Mr Owens’ barrister: It takes two to make a marriage

Posted on October 25, 2018 by - DIVORCE, RELATIONSHIPS

The barrister who successfully defended the year’s most high-profile divorce petition told Merrick Solicitors it took both spouses’ participation to make a marriage.

Nigel Dyer QC represented Hugh Owens in the Supreme Court when the UK’s highest court dismissed his wife Tini’s appeal against the lower courts’ refusal to grant her a decree nisi.

The landmark ruling prompted widespread publicity and renewed calls from family law solicitors for the introduction of ‘no fault’ divorce.

Mrs Owens’ petition relied upon her allegations about her husband’s behaviour to prove that she could not reasonably be expected to live with him and that the marriage had irretrievably broken down. But the Supreme Court agreed with both the original trial judge and the Court of Appeal in deciding that she had not sufficiently proved her case.

The Government subsequently opened a consultation on divorce law inviting submissions by December 10.

Owens divorce; Nigel Dyer QC

Mr Dyer, of London’s 1 Hare Court Chambers, said: “I think it’s difficult to see how a marriage can continue when one spouse refuses to participate in it.

“It’s got to be a consortium, and absent one party playing a role I don’t think that is a marriage.

Divorce reform necessary

“I do think divorce reform is necessary. The statute is outdated in contemporary society. It has its foundations in the matrimonial offences of the 19th century.”

Asked for his view of the outcome in the Supreme Court judgment, he said: “The Supreme Court has made it clear that the current law has been misinterpreted for many years by practitioners and judges using the expression ‘unreasonable behaviour” when referring to a petition relying on section 1(2)b (behaviour) and looking to attribute blame.

“But as the Supreme Court explained section 1(2)(b) is conduct based rather than fault based, and the behaviour complained about does not have to have caused the breakdown of the marriage.

“I think there has been a lot of misconception in the interpretation and application of the law.

“For example, a government website giving the public advice about issuing a petition provided a commentary on section 1(2)b. This stated that in order to succeed on the fact of unreasonable behaviour you have to prove quite serious fault and gave the example of domestic violence.

Linguistic trap

“The point made in the Supreme Court is that in using the expression ‘unreasonable behaviour’, lawyers and judges fell into a ‘linguistic trap’. They saw the behaviour in terms of having to prove fault when this was not necessary.

“I think that over time this misconception became commonplace. Because there are very few contested divorces the lawyers didn’t have to think about what section 1(2)b actually meant when they filled in a divorce petition. No contested divorce case went to the House of Lords and it took the Supreme Court to provide judicial guidance.”

Contested divorce cases are rare. In the Court of Appeal the President of the Family Division said that of the 114,000 divorce petitions in 2016, only 800 answers were filed. He estimated around 0.015% – less than 17 – went to a final, contested hearing.

Mr Dyer has acted in just five such contested hearings in 35 years at the Bar.

He said: “Although the case of Owens caught the nation’s attention, in reality it is relevant to only a very small minority of cases.

“It was a big noise about a very small area of family law.”

The second part of this interview with Nigel Dyer QC covering the Government’s divorce law consultation will be published shortly.

Click here to sign up for our newsletter to make sure you don’t miss it.

Manchester and proud for 30 years

Posted on October 4, 2018 by - FINANCES

#TOMs awards

Are you proud of where you work? I know I am.

It’s not often we think about that but last week Merrick was fortunate enough to be nominated in the family law category of this year’s Talk of Manchester awards #TOMs.

And this week marks the 30th anniversary of my working life in Manchester.  It was 3 October 1988 when as a rookie lawyer I joined the firm of Grover Smith & Moss to complete my articles.

It seems like a lifetime ago, but also like it was only yesterday.

The Manchester of those earlier years was undoubtedly a northern city with some clout.

Together we have since gratefully survived the three bomb attacks (at my desk for the first two) and Madchester.  We have commiserated the failed Olympic bid and celebrated the Commonwealth Games.  And always United during the downs as well as the ups!

Upwards and outwards

Today the city has become an economic juggernaut that continually spreads upwards and outwards.  A fact that is clearly reflected in this year’s 30+ categories and 250+ #TOMs nominations.

Some of the sector industries included weren’t around three decades ago, never mind the individual companies that are shortlisted.

Given the challenges currently faced by lots of businesses I am particularly struck by the ‘entrepreneurs’ sections. Firstly, because it’s such a burgeoning collection. A quick Google search throws up profiles of people doing great in advertising, fashion, technology, travel and many other areas.

Secondly, the award for Female Entrepreneur of the Year. We all know girls are the equal of boys, right, but sometimes we have to work harder and shout that bit louder to get ourselves noticed.

Perhaps no surprise then that Manchester is a city brimming with excellent female businesswomen; the legal sector particularly enjoying more than its fair share. But even so it’s always nice when those achievements are recognised.

So as someone proud to call Manchester home and who has a long working relationship with the city, I’d like to say, you’re simply the best!

And to those women whose business acumen has been recognised in the #TOMs this year it’s a helluva big bravo from me. There’s more of you around than 30 years ago and I’ll definitely be raising a glass to that on awards night in December!

 

Amanda J Merrick
Principal