Category: DIVORCE

#lawforgood could replace what our legal system’s lost

access to justice | Kendal Court

#lawforgood may not be a social media hashtag that’s too familiar to readers just yet – but hopefully that will change.


I first fell in love with the law when I was 13, inspired by a triple whammy of influences.

Leon Uris’ courtroom opus QB VII hit our TV screens around the same time our class read Harper Lee’s To Kill a Mockingbird with its theme of racial injustice. The novel’s hero, Atticus Finch, is a model of integrity for lawyers.

And there was 12 Angry Men, with Henry Fonda slowly convincing his fellow jurors to confront their own prejudices.

Together these three stories, each concerning a quest for justice, had a profound effect and determined my desire to work in the law 

I qualified as a solicitor in 1989. This was a time when access to justice was part of the fabric of our society never questioned.

Most firms had a legal aid offering and public funding was readily available.

Erosions to legal aid

The erosions to this system since have been gradual but ultimately seismic.

In April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came in to force imposing wholesale changes to the legal aid system for family law.

Now, to obtain advice or representation you must pay on a private basis. This is unless domestic violence is involved or mediation is your preferred method of resolution.

I stopped doing legal aid work in 1999, disillusioned by the ever-increasing bureaucracy. I have instead acted for some clients at a similar rate but on a private basis.

Meanwhile, official figures from 2017 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.

Courts axed

And magistrates and county courts like those in Kendal, Cumbria, were axed last year in a cost-cutting move. This was despite a campaign by the local newspaper – The Westmorland Gazette – arguing against the loss of local justice.

The traditional defender of the law against politics was the Lord Chancellor. Until very recently that role too was political leaving the law with no voice in the Cabinet. It was left to our judges to make a noise the government simply cannot ignore.

Last May the President of the Family Division, Sir James Munby, was forced to condemn the cruel policy of separating older people who need to go into care homes. ‘“People die of broken hearts,” he said.

In August he warned the nation would have blood on its hands if an NHS hospital bed could not be found for a teenage girl at acute risk of taking her own life.

Whether or not you believe Theresa May when she says she does not have a magic money tree what is clear is that any resources available to the government are unlikely to be directed towards family law reform and enabling access to justice.

Thankfully, family lawyers the length and breadth of England and Wales believe they have a responsibility to provide the answers.

Access to justice

Examples as to the truth of this statement can be found on Twitter – #whatabouthenry and #nofaultdivorce – to name but two.

At Merrick we have launched #AccessUs – a case-managed service intended to increase access to justice. Every member of the team is tasked with dedicating time to it.

We’re now interested in talking to colleagues across the profession to see whether more can be achieved by uniting efforts.

‘After all, the only thing that is going to save mankind is if enough people live their lives for something or someone other than themselves.’ – Leon Uris, QB VII

In my world that is #lawforgood


Amanda J Merrick


*A version of this article appeared in The Westmorland Gazette April 5 2018


access to justice | Merrick Solicitors
A judge had no choice but to jail an 83-year-old after he spent years deliberately frustrating the courts, according to a barrister in the divorce case.
The sentencing of millionaire property developer John Hart created media headlines earlier this month. The pensioner was given 14 months for contempt of court after repeatedly refusing to hand over business documents following his long-running divorce case.
Judge Stephen Wildblood QC took the unusual step of handing down a prison sentence after describing Mr Hart as an “exceptionally poor and untruthful witness”.
The judge said he had made every attempt to stop the contempt reaching crisis point but “orders of the court and the rule of law must be observed”.
In June 2015, four years after divorce proceedings began, Mr Hart was ordered to hand over £3.5m of their £9.4m wealth to his wife of 24 years, Karen Hart. As part of that she was also awarded his shares in Drakestown Properties Limited – a company owning two estates of industrial units in the West Midlands.
The shares were transferred, making her the owner of the company. But Mr Hart had “done his utmost to frustrate her ability to run it efficiently and effectively” as he “bitterly resents” that the company had been transferred to his former wife, said the judge.
After delaying the transfer, Hart and his staff “stripped out” management records, leaving behind only two bank statements and a collection of licences and leases.
Mr Hart was ordered on two occasions, in February and July 2016, to provide information to his ex-wife, but failed to co-operate, leaving Mrs Hart with difficulties in her management of the company.

Frustrate the courts

Judge Wildblood said: “This is a man who has received repeated warnings already that he must comply with court orders and he has chosen, repeatedly, not to do so.”
After being sentenced, Mr Hart is now on bail pending appeal on April 18.
Barrister Peter Mitchell has represented Mrs Hart since 2014 and believes the court was left with no alternative action.
Mr Mitchell told Merrick Solicitors: “A jail sentence following civil contempt is rare as is the jailing of an octogenarian. Therefore this makes for a very unusual case. But Mr Hart has been an exceptionally difficult litigant. He has done everything possible to frustrate the courts over many years.”
The judge praised Mr Hart’s ex-wife for being “exceptionally patient” in the proceedings and Mr Mitchell said she took no pleasure from his plight.
He said: “She was upset, she wasn’t looking for her ex-husband to go to jail. But she has had to fight him every step of the way. Three years after finishing litigation he’s still making it impossible for her to move on with her life.”
Barrister Peter Mitchell

Barrister Peter Mitchell

Mr Mitchell said despite the judge’s strong stance he did not believe courts were getting tougher on those who try to block justice.
He said: “There have always been a corpus of litigants who are as difficult as they can be. It is incredibly frustrating for the courts because it is unnecessary.
Mr Mitchell, of London’s 29 Bedford Row Chambers, said: “It is both professionally challenging and extremely interesting, I’ve never been in a case like this before.”

Loss of relationship

The judge, sitting at the High Court in Bristol, said prison would have a “marked effect” on Mr Hart. He added: “Mr Hart has not only lost some of the money which he holds so dear, but he has also experienced the loss of his relationship with his former wife and children.
“From the upbeat, proud and canny businessman that I first saw three years ago, he is now an isolated and sad man seemingly unable to enjoy for his remaining years the millions of pounds that he still owns.”
Commenting on the case, Amanda Merrick, principal at Merrick Solicitors, said the parties involved had the means to fight on until justice was done. That would not be the case for the majority who found themselves in a similar position.
She said: “In most cases there aren’t the assets to justify a protracted fight.  In these circumstances when faced with attempts by one party to avoid the other’s claims, commerciality often dictates defeat before a fair and proper outcome can be achieved.
“These incidences are only going to increase as the decision-making process becomes more stream-lined to accommodate a system that is failing for want of proper funding.”
The judge said the ”unnecessarily protracted litigation” had placed an immense burden on public funds in terms of court time and this would continue as a result of Mr Hart’s incarceration.
Miss Merrick added: “Perhaps this case should now encourage a more robust approach by the courts at a much earlier stage in financial remedy proceedings, particularly when faced with an obviously recalcitrant litigant like Mr Hart.
“Obligations regarding disclosure and compliance with court orders are fundamental to the Family Court’s decision-making process.
“To those parties who think the rules don’t apply to them the message should surely be loud and clear from the outset, not after nearly seven years of litigation.”


A primary concern for any parent divorcing or separating is the effect this has on any children in the relationship.
It’s clearly an unsettling time for all concerned but possibly more so for those witnessing the breakdown of their parents’ relationship. With more than 100,000 couples filing for divorce each year, one in three children is likely to experience parental separation before the age of 16, according to the Family Mediators Association.
Going to court can sometimes polarise parents creating additional tensions. Children inevitably feel these. Mediation is a more informal way to resolve the conflicts and disputes that can arise.
In particular it can be a very useful forum to address issues relating to children. These are so often driven by emotional factors, which the Family Court is unable to resolve.
Due to the communication involved in the mediation process relationships are often better preserved. This gives an opportunity for separating parents to continue to work together in the future for the benefit of their children.
At Merrick, our focus is on resolving disputes as quickly and cheaply as possible.
Most agreements need some give and take from both sides. Even so an agreed outcome is almost always preferable to the imposition of a solution by a judge.
Our job is to empower our clients, so they understand the impact of any compromises and are on an equal footing with their ex, when they need it most.
We strongly recommend that legal advice is obtained before entering mediation to give it the best chance of success.
We certainly would not advise anybody to enter such a difficult and far-reaching process on an uninformed basis. Believing that mediation is a quick-fix, cheap option to end a relationship without understanding the legal ramifications is not helpful and can often have unintended consequences.
Each individual set of circumstances are different. Only after listening and understanding those circumstances will we advise a client whether or not their case is suitable for mediation. If it is, and mediation is their preferred option, we will make the appropriate referral.
Here are some important points about the mediation process:
Mediation is voluntary for both parties.
If both parties agree to it, the impartial mediator facilitates negotiation and has no vested interest in the outcome.
Whilst being flexible to the needs of each party, the mediator is in charge of the process ensuring that sessions have focus and the whole process is going somewhere.
Mediation is confidential, except where there are any concerns of risk of harm to a child or vulnerable adult. Details of the mediation will not be referred to in evidence in any court proceedings about the same issues.
Typically, more than one session is needed to reach an outcome to stand the test of time and deal with underlying issues of conflict.
The decision-making rests with the participants. If an agreement is reached it is presented to the court for approval. This isn’t simply for rubber-stamping. The judge will consider the reasonableness of the terms proposed in all the relevant circumstances.
If, unfortunately, a negotiated settlement does not prove possible, we will support clients through the court process.
Family law is complex and each set of circumstances unique. Whether you are fact finding or have already made a decision, do seek properly informed legal advice.
More from Merrick about children in divorce here. Useful information from the Family Mediation Council here.



Marriage, it is often said, is a partnership of equals. It took English law a long time to give effect to that expression, but it has done so (or tried to do so, if it can) since 2000 and the case of White v White in the House of Lords.  Six years later, in the cases of Miller and MacFarlane the same court explained that sharing – and usually equal sharing – of the fruits of the marital partnership was one of the rationales for a redistribution of property on the ending of a marriage.

The sharing principle does not mean that the starting-point in all cases is that the assets of a marriage should be shared equally. However, any proposed settlement should be measured against the “yardstick of equality”, to determine whether it is fair in the circumstances of the case.  To the extent that there is a departure from equality, it will have to be justified and explained.

To put it another way, the effect of the sharing principle is that the assets of a marriage should be divided equally, unless there is a good reason why an equal division would be unfair. So the question is: when is an equal division unfair? Two recent Court of Appeal cases demonstrate circumstances in which the court considered that there should be a departure from equality.

The first case was Sharp v Sharp. The facts in the case were that the parties lived together from 2007, and were married in 2009. There were no children of the marriage. For most of their time together they both worked and earned similar salaries, but the wife received bonuses totalling £10.5 million, whereas any bonuses that the husband’s employment brought were “comparatively trivial”.

The wife commenced divorce proceedings in 2013 and issued a financial remedies application. At the time that the application was heard by Sir Peter Singer in the High Court the total assets held by either party amounted to £6.9 million, although the husband accepted that a property acquired by the wife prior to the marriage should be left out of the pot of “matrimonial assets” for division between the parties. The total value of the matrimonial assets was £5.45 million. Sir Peter Singer decided that that sum should be divided equally, and therefore awarded the husband £2.725 million.

The wife appealed against this decision, to the Court of Appeal. She argued that an equal division of the matrimonial assets was not appropriate, because of the short duration of the marriage and the fact that the parties had largely kept their finances separate.  The wife’s appeal was allowed.

The leading judgment of the Court of Appeal was given by Lord Justice McFarlane.  He described the relevant factors as being that “the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and… one of them has been paid very substantial bonuses during their time together.”  As to the source of the bonuses, the court of appeal found that the husband had made no contribution to the source of the bonuses (which derived from favourable trading conditions fortuitously enjoyed during the marriage) and that their domestic contribution had otherwise been equal.  The judgment is critical of the trial judge, and of the profession, for departing from the majority of the House of Lords in Miller and simply applying the yardstick of equality to everything built up during the marriage, without sufficient recognition of the way the parties themselves arranged their finances.  On a proper view of the majority in Miller, there was scope for, and it was appropriate to, depart from equality where the parties themselves had done so in the arrangements they had put in place.  There was no principle that departure from equality in such circumstances could only take place where the parties had expressly agreed to do so in a properly-constituted nuptial agreement.  Thus the husband’s award was reduced to £2 million, to reflect a combination of the following three factors: (a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he was to retain; and © some share in the assets held by the wife.

The other case was Hart v Hart. The facts in this case were very different. The parties were married in 1987. At the time of the marriage the wife had no significant assets but the husband, a property developer, was already a man of substance. The very long marriage produced two children, both of whom are now grown up. They separated in 2006 and divorce proceedings were commenced in 2011.

A financial remedies hearing took place in the High Court in 2015, at which time the assets were valued at £9.4 million. At the husband’s behest, the focus of the trial was on the husband’s wealth at the time of the marriage.  However, the husband’s litigation misconduct – a combination of non-disclosure and deliberately misleading disclosure – made it impossible for the court to form any view as to the scale of the husband’s pre-marital wealth.  This, in turn, made it impossible to establish the true scale of the matrimonial acquest (to which the wife was entitled to an equal share) or to contend that pre-acquired property had become nuptialised, and so matrimonial on character.  The judge resolved the resulting dilemma by making an award quantified solely by reference to the wife’s needs (which he held to be c. £3.5 million).

The wife appealed.  She argued that, after a long marriage, it was for the husband to establish a satisfactory evidential foundation for the substantial departure from equality that he sought, and that he had failed to do so.  The argument was supported by the requirement that, in every case, the court should make findings as to the matrimonial property, and that such findings required the court to consider not only the scale of any pre-acquired property, but also the use that had been made of it during the marriage (to determine whether it had become mingled, shared or otherwise nuptialised).  Second, the husband’s litigation misconduct had made it impossible for the wife to quantify her sharing claim and it was unfair in those circumstances for her award to be restricted to needs in circumstances where the husband’s non-disclosure had made it impossible for the wife to evidence that she had a sharing claim which would found a higher award.

The Court of Appeal dismissed the wife’s appeal.  The lead judgment was given by Lord Justice Moylan. He accepted that there were ‘deficiencies’ in the husband’s evidence about the extent of his assets. However, he dismissed the suggestion that the current law on matrimonial property required the court, in every case, to make detailed findings as to its extent.  The investigations which it was reasonable to conduct, and whether the enquiry required a precise arithmetical approach (as in Jones v Jones) or a more laissez-faire approach (as in C v C) was for case management, and required consideration of proportionality and reasonableness.   In this case, the wife’s concession that the husband was a man of means at the start of the marriage entitled the judge to conclude that an equal division would be unfair to the husband and, equally, that an unequal division would be fair to the wife.  Although the court expressed considerable reservation at the judge’s decision to confine the wife’s award to her needs, after much reflection it could not say that this fell outside the generous ambit of the judge’s discretion.

To many practitioners both these cases are shocking in their different ways; Sharp because it elevates what was an unspoken agreement to maintain largely separately finances to the same realm as a properly negotiated and executed pre-nuptial agreement, but with none of the safeguards; and Hart because the husband’s litigation misconduct was permitted to obliterate the wife’s own sharing claim.   Certainly, whenever a case involves a short marriage, or pre-marital property, parties and practitioners are going to have to think hard about the arguments they advance.  Neither decision sits comfortably with the need to discourage litigation by adopting an easily understood and comprehensible approach to two commonly-encountered situations, or to encouraging parties to settle their disputes as quickly and cheaply as possible.

For professional legal advice contact one of our solicitors on 0161 838 5410.

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There can be few subjects that are surrounded by so many myths as divorce. Why this should be is not entirely clear, but perhaps it is because it is far more widely discussed with friends and relatives than most other legal topics. Many of the myths are fairly harmless, but some could, if believed, lead people into making wrong decisions when they go through divorce. It can therefore be important that they know what is a myth, and what isn’t.
So here, in no particular order, are ten of the most common myths surrounding divorce:
1. If my ex has committed adultery or behaved badly, I will get more? Not true. Adultery or bad behaviour will normally have no bearing whatsoever on how finances are divided on divorce. One party’s conduct will only have a bearing if that conduct is exceptionally bad, but such cases are extremely rare.
2. There is such a thing as a ‘quickie divorce’, used by rich people and celebrities? No, there isn’t. The law is the same for all. Either the divorce is undefended, in which case it should usually be dealt with in a few months, or, unusually, it will be defended, in which case it can take much longer.
3. If my ex does not pay child maintenance, I can stop them seeing the children? Wrong. Child maintenance is quite separate from a parent’s contact with the children. Just because a parent is not paying child maintenance does not mean that they cannot see them. By the same token, just because they are paying child maintenance does not give them a right to have contact.
4. If we both agree to the divorce, we won’t need to prove fault? This one is only partly true. Sadly, it is still necessary for one party to prove that the marriage broke down due to the other party’s adultery or unreasonable behaviour, unless the parties have been separated for at least two years. Only after two years separation can they agree to divorce without proving fault.
5. Divorce is always expensive? There are many horror stories out there, suggesting that a divorce will always cost many thousands of pounds to sort out. Whilst this can happen, it is quite possible for the divorce to be dealt with quite cheaply, especially if the parties are able to resolve matters by agreement, rather than having to ask the court to resolve those matters for them.
6. Mothers always get the children? Not necessarily. What arrangements are made for children depends upon what is best for their welfare. Often, of course, this will mean that the children spend most of their time living with their mothers, but there is certainly no rule that they always will.
7. Finances are always divided equally? Again, not necessarily. It is often appropriate that finances are divided equally, especially where there are no dependent children, but there is not a rule that says finances must always be divided equally. How the finances should be divided will depend upon the facts of each case.
8. You don’t need a court order if you agree finances? Wrong. You do need to have any financial/property settlement incorporated into a court order, to ensure that it is both final and enforceable. Without a court order there is nothing to stop either party making a further financial claim at a later date. The court will only make the order if it considers that the terms of the settlement are fair and reasonable.
9. It’s not adultery if we were separated at the time? Again, this is wrong. It doesn’t matter if the parties were living separately when it occurred, it is still adultery, and can be used to show that the marriage has irretrievably broken down, for the purpose of divorce proceedings.
10. The court favours wives in financial settlements? No it doesn’t. The law does not favour either husbands or wives. The court will order a settlement that it considers to be fair, having regard to all of the circumstances, in particular the needs of the parties. This may mean, for instance, that a wife will be awarded more because her needs are greater, but that is not the same as saying that the court favours wives.
And finally, one more myth that is perhaps the most common of all, even if it strictly relates to marriage, rather than divorce: the myth of the ‘common law marriage’. It is still widely believed that if you simply live with a partner for long enough, your relationship will be recognised as a ‘common law marriage’, and that therefore you will have the same rights as a married person when the relationship breaks down. This is simply not true. There is no such thing as a ‘common law marriage’, no matter how long you and your partner have been together. You will not, therefore, have the same rights as a married person, and you may not have any financial or property rights at all if the relationship breaks down.
The moral from all of this is clear: if you want the facts, then take advice from a qualified family lawyer, not your best friend!
For legal advice from a specialist family lawyer, call Merrick on 0161 838 5410 and we’ll be happy to help you.
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We have all probably read or heard about some celebrity being afforded the luxury of getting divorced quicker than us mere mortals. January has been has been no exception with reports that Gary and Danielle Lineker, Zodiac from Gladiators (for those who remember the 90s TV programme) and Big Brothers Nasty Nick Bateman were all granted a Decree Nisi.
But do ‘Quickie Divorces’ actually exist?
The simple answer is no. Everyone who applies for a divorce is subject to the same procedure. The length of time that procedure takes often depends on how quickly it takes to complete the documentation and how quickly the court deals with the paperwork.
Reference is often made to a marriage ending at the Decree Nisi hearing. This is a hearing where a Judge in open court will read a list of names of the parties who are getting divorced. That hearing is over very quickly but the marriage remains in existence. The press seem to think that as this hearing is over quickly there has been a quickie divorce.
It is only when Decree Absolute is pronounced that the marriage ends and that cannot be applied for until at least 6 weeks after the Decree Nisi. It is possible in certain circumstances to reduce the 6 week period if for example one of the parties may be getting remarried before the earliest date the Decree Absolute can be applied for.
Finalising a divorce is important if there are finance to resolve as the Decree Absolute needs to be granted for orders to take effect – don’t be fooled by the press into thinking the divorce process is over at the Decree Nisi stage.
Don’t believe everything you read in the press and always seek legal advice if you are unsure!
For legal advice from a specialist family lawyer, call Merrick on 0161 838 5410 and we’ll be happy to help you.
Follow us: @MerrickLegal on Twitter