Category: DIVORCE

Will the Government fudge divorce law reform?

Posted on November 14, 2018 by Merrick Solicitors - DIVORCE

A leading barrister believes the Government may still shy away from change – despite launching a public divorce law consultation.

Campaigners wanting the laws to be updated have placed their faith in Justice Secretary David Gauke’s announcement of consultation. There is also a Private Members’ Bill introduced by a former President of the Family Division, Dame Elizabeth Butler-Sloss, which is awaiting a second reading in the House of Lords.

But Nigel Dyer QC, of London’s 1 Hare Court Chambers, believes even with the mood music of change there is still a strong possibility the Government will shy away from action.

He told Merrick Solicitors: “Any change in the reform of the divorce law has usually been a fudge.

“I think just because the Government has said they are going to look into it, it could simply be kicking it into the long grass. I don’t think the consultation will necessarily result in change.

“Consultation is a long, way from introducing legislation. Since the Divorce Act of 1857 there have been two Royal Commissions and two Law Commission reports all of which advocated reform. The last Law Commission report led to the Family Law Act of 1996 which completely changed the current divorce law. This Act received the Royal Assent. But the provisions introducing no-fault divorce were never brought into force and were later repealed.

“So, if a Government can go so far as introducing a Bill, get it through both Houses, get Royal Assent, then not bring it into force and then repeal it, I’m not sure I’m overly confident that consultation is going to result in change.

Brexit

“With the amount of resources directed to Brexit in Whitehall at the moment I would have thought any change in divorce law would come very low down the pecking order in terms of priority. But, who knows?”

Mr Dyer, described in The Legal 500 as the leading London family silk, said there were powerful pulls on either side of the debate about how easily divorce should be available.

He added: “Historically there have always been strong opposing camps in Parliament.

“There are those who take a more liberal approach to marriage and consider that when it is over it should be dissolved. And those who consider that marriage is the foundation of society and nothing should be done to undermine it.”

Mr Dyer said the consultation is open to 10 December 2018. The Government has proposed that the existing law is repealed and replaced by a process whereby a spouse gives notice to the court that the marriage has irretrievably broken down.

A move to a system that recognised ‘no fault’ divorce could mean that contested cases are replaced by divorce on ‘unilateral demand’. And that would mean a spouse who opposed divorce – such as Hugh Owens who Mr Dyer represented through to the Supreme Court this summer – would be unable to defend the action.

Private Members’ Bill

Asked what he would like to see by way of reform, Mr Dyer said that both the current Scottish model and the changes proposed by Dame Butler-Sloss’ Private Members’ Bill had merit.

He said: “Interestingly the 1969 Act that became the current law in the 1973 Act started off life as a Private Members Bill which was later adopted by the Government. So I wonder whether the Government will blow in the sails of this private Bill.

“The Scottish system is quite good because instead of our two years with consent they have one year. And instead of five years without consent they have two. I think that is a better system because the parties don’t have to wait as long.

“I imagine if there is going to be change, it will be root and branch. But if they wanted to do a small change the Government could not do better than follow Scotland.

“The suggested scheme in the Private Members’ Bill provides a way to end marriages with a minimum of acrimony.

“I think an emotive behaviour petition can raise the temperature unnecessarily, but in most cases there is divorce by collusion. The petitioner’s solicitors usually send a draft of an anodyne petition to the respondent’s solicitors.”

Inflammatory situation

Mr Dyer highlighted divorce online as a concern because it by-passes the advice provided by a lawyer-led service.

He said: “What I would be concerned about is where a couple have a very big row on Saturday night. Then the following day one of them decides to get divorced.

“They sit in front of a computer screen and fill in a divorce petition online. When it comes to the behaviour particulars all sorts of unpleasant allegations are made. The reception centre which receives the petition does not edit the particulars.

“The petition later drops into the other spouse’s inbox. I think that is potentially a very inflammatory situation and an unfortunate way to start a divorce. How many people write tweets or Facebook posts that they later regret?”

The first part of this interview with Nigel Dyer QC covered the Supreme Court’s ruling in Owens v Owens.

Amanda Merrick thinks there are other areas of UK family life in greater need of law reform than divorce. Cohabiting couples perhaps being the most obvious.

Amanda, principal of Merrick solicitors, said: “Mrs Owens will get her divorce. Unfortunately for her, she will have to wait in the same way as the person who wants to be freed from a spouse who is a devout Catholic.”

She does have concern about a one-size fits all approach to the ending of a marriage.

“People’s feelings and emotions could not be more at large than during a relationship breakdown. It is well-established that suppression can have an adverse effect on a person’s mental health and well-being.

Creating options

“For some people, such as those who have been in an abusive relationship, assigning fault or blame to the other party is empowering and cathartic; very often the start of their healing process.

“So, for me divorce reform should be about creating options.

“Yes, I can see the merit in reducing time limits for a separation with or without the other party’s consent. And there are, of course, couples for whom no-fault would be the preferred route, but sanitise the process completely? That surely shouldn’t be the decision of anyone other than the two people involved.”

So, what about the impact on any children of those parties?

Research carried out by the Nuffield Foundation has found that the use of fault may trigger or exacerbate parental conflict which has a negative impact on children.

“Families operate in a constant state of conflict. There are any number of different priorities needing to be compromised at any given time…..and that is when everything is OK.

“Relationship breakdown doesn’t change that; it’s the choices that change and lawyers, healthcare professionals, mediators and everyone else working in this arena should be there to help inform those choices and their order of priority at a very difficult time.”

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Why we all need to support Justice Week

Posted on October 25, 2018 by Merrick Solicitors - 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 Merrick Solicitors - 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.

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 19^th 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.

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Divorce law consultation needs real families

Posted on September 18, 2018 by Merrick Solicitors - DIVORCE

A consultation is now under way on proposals to change Britain’s outdated divorce law.

The government wants to end the ‘blame game’ for separating couples and reduce unnecessary conflict in the divorce process.

At present, divorcing couples are forced into blaming each other for the marriage breakdown. They must cite unreasonable behaviour, adultery or desertion on the part of their spouse, unless they have been separated for a minimum of two years. If the divorce is opposed, then couples currently must wait five years before a divorce is granted.

Critics say the need for one party to be blamed for the breakdown of the relationship creates additional tensions, at an already stressful time for couples and any children affected.

Demands for change have increased since the Supreme Court ruled in July that Mrs Tini Owens should be prevented from divorcing her husband, until five years had elapsed. This was despite living apart from Hugh Owens since 2015.

No fault divorce

The most eye-catching aspect of the new proposals is the introduction of a new notification process which would remove the opportunity for the other spouse to contest divorce. This is the reason the change is referred to as ‘no fault divorce’.

Other proposals in the consultation include:

Retaining the irretrievable breakdown of a marriage as the sole ground for divorce.
Removing the need to show evidence of the other spouse’s conduct, or a period of living apart.
Introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce.
Testing a six-month minimum timeframe between the two stages of divorce. This would give couples the stability to plan as well as to consider the implications of the decision.

Introducing the consultation, Justice Secretary David Gauke said: “When a marriage has irretrievably broken down, the law should not frustrate achieving better outcomes, especially for children.

“That is why we are consulting on the detail of our reform proposal, so that a revised legal process can help people find greater stability to consider the implications of the decision to divorce and help them to reach agreement about arrangements for the future.

“Last year, nearly 110,000 couples divorced, all of them constrained by a requirement in place for nearly half a century. The damaging effects of this requirement are not always apparent to people who have not themselves been affected by divorce.”

Merrick view

Merrick principal Amanda Merrick said: “It has long been argued that our divorce laws are no longer fit for purpose and overdue for reform. What people have now is an opportunity to put forward views on how we move to something better.

“In particular, I really hope that those who have been through the process make their views known. Having been divorced with the law as it currently stands, they are uniquely placed to give testament to what works and what needs to change.”

Have your say in the consultation

Divorce facts

Only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these, only a handful go on to defend the divorce at a court hearing.

At present, six weeks and a day must elapse before a decree nisi can be made absolute. In practice divorces take much longer to go through.

In 2017, behaviour accounted for nearly half of all petitions (46.8%, or 47.3% when combined with adultery).

Last year almost 110,000 people petitioned for divorce in England and Wales.

The consultation closes on 10 December 2018.

We’ve written about no fault divorce previously.

Mills gives some clarity on spousal maintenance

Posted on August 20, 2018 by Merrick Solicitors - DIVORCE

Does the recent Supreme Court ruling in Mills v Mills mark the end of the ‘meal ticket for life’?

The QC who successfully persuaded law lords to overturn a previous Court of Appeal decision believes that it has clarified only one aspect of variation of maintenance orders.

Philip Cayford told Merrick Solicitors it would take more cases testing maintenance arrangements for there to be a real end to the so-called meal ticket for life. Currently neither the Supreme Court nor Parliament appear to be in the mood to take a proactive stance on modernisation.

In July, the court unanimously allowed the appeal of Mr Mills. It said the judge at the first court hearing had been entitled to decline to vary an order for the ex-wife’s spousal maintenance. The variation would have required him to pay all her rental costs.

Court of Appeal analysis rejected

The Court of Appeal had backed the ex-wife’s request to increase periodical payments for this purpose.

Mrs Mills received a lump sum of £230,000 in settlement of her capital claims, plus annual spousal maintenance of £13,200 when the couple divorced in 2002, after a 15-year marriage.

After a series of unwise property purchases, the ex-wife was forced to move into rental accommodation and had debts of more than £40,000. She also had a £4,000 shortfall per year between her outgoings and the spousal maintenance paid by her ex-husband.

The Supreme Court rejected the Court of Appeal’s case analysis. It ruled the original judge had given a clear reason for refusing the ex-wife’s claim, namely her unwise financial decisions. And that it was consequently unfair to expect the husband to meet these increased needs.

Many in the legal profession have welcomed clarity that a spouse should not be responsible for a former partner’s future housing needs where a capital settlement intended to meet those needs has been mismanaged.

Puts down a marker

Mr Cayford QC, head of chambers at London’s 29 Bedford Row, said: “I think it puts down a marker regarding financial conduct. If the payee gets into trouble – not that they’ve been profligate or wanton – they cannot argue that’s it’s not their fault. You have to take the slings and arrows of outrageous fortune.

“It clears up one issue and it helps Graham Mills. But after that we’re not much clearer on variation applications.”

Mr Mills was given limited grounds to appeal the Court of Appeal decision. At the Supreme Court hearing Mr Cayford was reminded of the need to limit his argument to that one point.

He said: “I do think there were aspects that could have been dealt with. But the Supreme Court determined not to engage in debate, not in a proactive way. Our appeal was a success because the Court of Appeal was plainly wrong and should have considered previous cases (Pearce, North and Yates).

“To see real reform in this area we have to ask, is Parliament in the mood to make a bold announcement?

People want fairness

“99% of online comments in forums backed Graham Mills. Fairness is what people really want in this area.

“They plainly feel it is a nonsense that a spouse should be required to pay not once, but twice, when the ex-partner can be self-sufficient. It is ridiculous to carry on in this way.”

Mr Cayford said in the absence of any intervention by Parliament, it would take more cases to further test and define what society wants from its laws in this area.

On Mills, Mr Cayford said in theory his client was now entitled to go back to the first court for a variation if he had new evidence to present.

Legal commentary since the ruling has said the Mills case has been helpful and fits with a general trend towards limiting indefinite maintenance arrangements.

Clean break preferred result

Amanda Merrick, principal at Merrick Solicitors, said there is a statutory obligation on the court to consider if a clean break can be achieved in every case and that is the preferred result.

Spousal maintenance is payable where there is a need to be met and insufficient capital assets to facilitate financial independence.

On whatever basis an order for spousal maintenance is made, the amount being paid can always be varied. This is either by agreement or following an application to the court. This can result in payments being increased or reduced. In that way spousal maintenance payments can reflect the changing financial fortunes of both the payer and the recipient.

Miss Merrick said: “The issue was Mrs Mills had already received a capital sum to meet her housing needs. Should a subsequent change in her circumstances make Mr Mills responsible via his ongoing maintenance obligations. Ie. should he have to pay her rent?

“The Supreme Court said not. But would their decision have been the same had there been dependent children of the family? The court’s first consideration in any financial remedy application is the welfare of any child under the age of 18. It is hard to imagine duplication trumping that.”

Link to judgment https://www.supremecourt.uk/cases/docs/uksc-2017-0040-judgment.pdf

Divorce law reforms must be for the better

Posted on July 26, 2018 by Merrick Solicitors - DIVORCE, RELATIONSHIPS

Supreme Court’s decision to deny Tini Owens a divorce has understandably hit a nerve with many.

Five judges of the UK’s highest court this week upheld rulings by the Family Court and the Court of Appeal that she must stay married despite her complaint that the marriage is loveless and has broken down.

Divorce law reform

The case has provoked widespread comment about the need for divorce law reform and a move to ‘no fault divorce’. Many in the legal profession have described it as a missed opportunity.

The Supreme Court, however, was never likely to grant the divorce. As its president Baroness Hale had said previously, the court is there to interpret and apply laws made by Parliament, not to change those laws.

Nevertheless, Lady Hale said she found the Owens divorce case “very troubling”.

She said “expectations” of whether it was “reasonable to expect one spouse to continue to live with the other, in the light of the way the latter has behaved” had changed over the past half century.

“The social norm which has changed most obviously is the recognition that marriage is a partnership of equal,” she said.

Question for Parliament

In delivering the judgement, Lord Wilson, said the justices had ruled against Mrs Owens “with reluctance”.

He said the “question for Parliament” was whether the law governing entitlement to divorce remained “satisfactory”.

So there we have the ball once again passed squarely back to the law makers.

Will they now find the resolve and time to re-evaluate laws that have stood for half a century?

What must be ensured amid the clamour of this particular case is that any changes improve the system and are not simply a knee jerk reaction.

No one could argue that what we have now is perfect.

And some have already said that what we may see next are instances where divorcing parties feel they must embellish grounds for divorce to ensure that applications proceed without issues as in the Owens’ case. That would not be good for anyone.

Under current law there is only one legal ground for divorce, that the marriage has irretrievably broken down. The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Hence, Mrs Owens will have her divorce five years post-separation in 2020. In the meantime changes in society rightly mean there is no stigma associated with her separated status.

So how would replacing this with a ‘no fault’ option improve Mrs Owens’ lot? Surely Mr Owens should still have a say…it’s his marriage too.

And what of the cathartic experience of laying blame; such an acknowledgement can be a powerful part of the healing process for some.

Can ‘one size fits all’ work?

Is society at a point where it is appropriate for one party to turn their back on a marriage because they have decided it’s no longer for them. Are we ready to dispense with the notion of ‘for better or worse’; the principle of commitment?

None of this is intended to minimise the angst felt by Mrs Owens, or anyone else who sadly finds themselves in a similar situation. But given that no two relationships are the same can a “one size fits all” approach to divorce, really work?

The complex nature of relationships means that every couple’s breakdown brings with it its own challenges.

In asking Parliament to move us away from something imperfect and ripe for reform this should not be forgotten.

We’ve previously written about no fault divorce here.

Five thoughts on ‘no fault divorce’

Posted on May 23, 2018 by Merrick Solicitors - DIVORCE

The highest court in the land – the Supreme Court – is considering its judgment in the case of Owens v Owens.

This high-profile and long-running case has provoked huge debate as it raises important questions about our divorce laws. Many in the legal profession believe the law is out of step with modern life and needs reforming.

In England and Wales since the 1970s, there is only one legal ground for divorce, which is that the marriage has irretrievably broken down.

The person who starts the proceedings must prove this by establishing one of five facts: adultery, unreasonable behaviour, desertion, two years separation with the other party’s consent, five years separation (no consent required).

Mrs Owens’ divorce petition has been contested by her husband – something that happens in only a small percentage of cases. The High Court and the Court of Appeal have rejected Mrs Owens’ claims. She has appealed to the Supreme Court in the hope of getting the divorce she wants.

Campaigners have highlighted the Owens case as proof the system needs to be changed. Otherwise, people in similar situations can find themselves trapped in a marriage they no longer wish to be in.

In approximately 60% of cases, the system relies on one party to blame the other for the marriage failure. Many have argued that it is time for ‘no fault divorce’.

Campaigners argue that marriages sometimes just run their course with no one party any more to blame than the other. And surely no one should be forced to stay in a marriage when they are unhappy?

The Supreme Court will deliver its verdict later in the year.

In the meantime, here are five points raised by the Owens case and the much talked of ‘no fault’ divorces.

Unnecessary conflict

Under the current system, the requirement to cite adultery or unreasonable behaviour can provoke unnecessary conflict in proceedings. Waiting two years isn’t always the best option when there are financial issues to be resolved too.
It may be that the marriage has just run its course. But unless the parties are prepared to wait the only option is for one to make allegations against the other. While in some cases this may seem like a means to an end, it frequently soon escalates when written allegations against a partner are prepared for submission to court. Many practitioners argue the system should move away from the confrontational, particularly if there are children.

The current system is hypocritical

Sir James Munby, when President of the Family Division, denounced the current law as “based on hypocrisy and lack of intellectual honesty”.
After ruling on Owens, he said couples must engage in “consensual, collusive, manipulation” of the law to gain a divorce.
This led to concern amongst family lawyers that the ruling would lead to couples making more lurid allegations against each other to ensure a divorce was granted. Research published last year by the Nuffield Foundation showed our divorce laws incentivise people to exaggerate claims of unreasonable behaviour or adultery to get a quicker divorce.

Sir James Munby said divorce law was based on hypocrisy

No fault divorce: Conciliation isn’t for everyone

For all the talk in the media and amongst the profession no-one yet knows what ‘no-fault’ divorce really means or how it will work. Is it to be an addition to our existing laws or a wholesale replacement? And what would that mean for those cases in which there has been conduct relevant also to the associated financial or children issues? Under current legislation the decree nisi acts as a finding of fact on the contents of the petition.

Man has been laying blame since the beginning of time. Adam blamed Eve and God for his fall from the Garden of Eden and Eve in turn looked to the serpent for encouraging her to take the forbidden fruit.
Conciliation isn’t for everyone and in some cases the blame game can provide its own form of catharsis. A blanket removal of the existing grounds for divorce may not provide the panacea that is expected.

Many in unhappy marriages look to divorce to give them a fresh start in life. They require the cathartic experience of being able to say why exactly their marriage failed. And, to put it bluntly, they want to name the party they believe was to blame. And also recite the poor treatment that resulted in their marriage irretrievably breaking down. To deny that experience could serve to cause more conflict (not less) when dealing with associated financial or children issues.

The Family Court is entrusted with a very wide discretion for a reason; because no one solution fits all. It’s a principle that perhaps should not be overlooked when deciding the part no fault divorce should play in modern day relationship breakdown.

The Supreme Court doesn’t make new laws

Those looking for a ruling in Owens v Owens to lead directly to a law change are very likely to be disappointed.
The Supreme Court’s president, Baroness Hale, has already said: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Government action is therefore needed

Parliamentarians should be watching what is happening and getting ready to step in. Divorce law in England and Wales is out of step with our nearest neighbours Scotland, most other countries in Europe, and North America.
Despite numerous calls to change the law, successive governments have failed to do so. An attempt to introduce no-fault divorces in 1996 failed after it was described by the Government as unworkable. A Private Members Bill in 2015 failed to win backing, though Baroness Butler-Sloss has signalled her intention to try again.

Government inaction is possibly because they don’t want divorce to look too easy. But in the real world couples do split up. Surely there should be a mechanism to make sure, where both parties are agreed, unnecessary obstacles aren’t placed in the way, causing additional suffering for all concerned?

Family law reform in spotlight at Supreme Court

Posted on May 11, 2018 by Merrick Solicitors - CHILDREN, DIVORCE, RELATIONSHIPS

Court 1, The Supreme Court - Family law reform

Two cases with potentially far-reaching consequences for family law reform will be heard at the Supreme Court this week.

The hearings could shape the future look of divorce and civil partnerships.

Owens v Owens

The case of Owens v Owens underlines the need for no-fault divorce to finally be adopted in England and Wales.

Tini Owens claims she’s “locked in” to her marriage with farmer Hugh Owens which broke down after she had an affair. She filed for divorce, but Mr Owens represented himself and opposed the petition. Her request was denied.

Her appeal was rejected by the High Court and then the Court of Appeal. She was, however, given leave to appeal to the Supreme Court and this is due to be heard on Thursday.

Family lawyers group Resolution has been given permission to make representations, given the importance of the likely ruling.

Family law reform?

As the law stands, the requirement to allege adultery or unreasonable behaviour provokes unnecessary conflict. Reducing that hostility must be a better way forward and would assist in making divorce law fit for purpose.

Previously we looked at this from the all-important perspective of a child.

Currently, Mrs Owens is forced to stay in a marriage that she no longer wants to be in. She’s having to appeal to the highest court in the land to grant her wish.

Whether this case will lead to direct reform, only time will tell.

At the Court of Appeal, Sir James Munby ruled: “Parliament has decreed that it is not a ground for divorce that you find yourself in a wretchedly unhappy marriage, although some people may say it should be.”

Baroness Hale, President of the Supreme Court

And the President of the Supreme Court, Baroness Hale, said only last month: “It is not the job of the courts to legislate – only Parliament can do that. Our job is to interpret law that Parliament has given us.”

Hence, all eyes will be on the Supreme Court on Thursday.

That will follow a case at the start of the week with potentially far-reaching consequences for civil partnerships and co-habitees.

Steinfeld

Same-sex couples have had the right to enter into a civil partnership since 2005 and to marry since 2014. No such right to civil partnership exists for opposite-sex couples.

This omission has been challenged by Rebecca Steinfeld and Charles Keidan, a couple in a long-term relationship. They wish to formalise their arrangement but have an ideological objection to marriage, based on what they consider to be its patriarchal nature.

The couple sought a judicial review of the government’s decision not to offer civil partnerships to opposite-sex couples. Both the High Court and Court of Appeal ruled against them.

While the government has been looking at whether a change in the law is required, the couple are now to have their case heard by the Supreme Court.

At the heart of this is the truth that some co-habitees want a legally binding relationship other than marriage that affords protection in the event of a relationship breakdown or death.

Previously we explained the lack of legal protection for co-habitees and some of the myths surrounding their ‘rights’.

There are more than three million co-habiting couple families in the UK. Surely it is right that they have the option to choose a legal status right for their beliefs?

Court 1 of the Supreme Court will be the testing ground for reform.

Baroness Hale: By University of Salford Press Office [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Don’t let TV put you off seeking the legal advice you need

Posted on April 24, 2018 by Merrick Solicitors - DIVORCE, RELATIONSHIPS

Don’t let TV put you off seeking legal advice | Merrick Solicitors

People in need of legal advice about their relationship are being urged not to be put off by recent negative headlines.

The BBC’s new drama series, The Split, portrays the larger-than-life antics of high-end family lawyers and their even wealthier clients. The programme has sparked a rush of newspaper articles comparing the fictional series with real-life counterparts at some of the country’s biggest law firms.

Much of the coverage has focussed on the fees charged by some of the London circuit’s highest-profile family lawyers.

Karen Leadbetter, associate solicitor with Merrick, said it would be a concern if those who needed it were put off seeking qualified legal advice for fear of being landed with exorbitant costs.

She said: “If you’re trapped in a relationship or marriage you want to get out of, it must be frightening to see some of these articles and their talk of charges of £600-an-hour.

“That’s not the norm and we always discuss whether clients have tried or are willing to consider marriage guidance. Divorce should be a last resort.”

Associate solicitor Karen Leadbetter

Withdrawal of legal aid

The withdrawal of legal aid for most divorces has left people with two options when a relationship irretrievably breaks down.

If they have the means they can instruct a solicitor to act on their behalf. If funds aren’t available, they can endeavour to handle their own divorce or separation. This has led to a huge spike in the number of DIY – or litigant in person – divorces reaching the courts.

To counter this, Merrick is pioneering a new service structure. This includes payment tiers intended to ensure charges are commensurate with individual circumstances.

One of these is #AccessUs which offers the firm’s years of legal expertise at a heavily discounted rate to those with limited finances.

Karen said: “For many people it’s not by choice they end up representing themselves but because legal aid isn’t available or they cannot afford legal fees.

“There are risks involved in doing this and the individual going into this process alone can be at a disadvantage.

“There is often distrust with feelings running high between the two parties. Trying to deal with matters yourself in these circumstances can be a hindrance to obtaining a settlement. People can also sometimes rush to proceedings, without attempting to negotiate a settlement.

“Proceedings can also take longer because litigants in person are not familiar with the process and the language used. When children and complicated finances are involved it’s even more important that qualified legal advice is available.”

People need to protect themselves against risk

Karen, noted in the profession’s Legal 500 as someone who ‘fights hard for her clients’, added: “There are risks that people need to protect themselves against. For instance, upon divorce, where circumstances allow, the obtaining of a financial clean break court order is needed. Without this the parties may be able to bring a financial claim in the future.”

Merrick is committed to ensuring that, whatever their resources, clients can access the information needed to make informed decisions. This has come as a welcome surprise to some looking for help.

Karen said: “When we’ve had a consultation and been through the financial circumstances they have sometimes been surprised and relieved that our rates are based on their financial means. Otherwise they would have to walk away, not able to engage us.”