Life’s a Lottery – some you win some you lose

There is a first for most things and recently the High Court had to tackle the issue of how to deal with a National Lottery win in the context of a financial application. Mr. Justice Mostyn in S v AG (Financial Remedy: Lottery Prize) concluded that a lottery win was to be treated as non matrimonial property. The Court in financial applications has to distinguish what should be considered as matrimonial property which in broad terms is defined as assets that the parties have built up together during the marriage and have been treated by them both as assets of the marriage. The home they shared is generally always considered to be a matrimonial asset irrespective of whose name it may be registered in. Non-matrimonial assets are generally those assets that either the parties had pre-marriage or which may have been inherited prior to or during the marriage and those assets acquired post separation.

The above case in summary involved a claim brought by the husband in relation to a significant win that his former wife had won on the National Lottery.

The parties had married in Columbia in 1984 and came to the UK. They had two children. The wife was part of a lottery syndicate and all her Christmases came at once when the syndicate won £1 million in the December of 1999. The money was shared out and the wife’s slice was £500,000.00. The wife went on to use most of the money to purchase and do up a property which became the family home.

The wife’s case had been that in her eyes the marriage had been on the slippery slope for some time and her and her husband had been separated since 1996, therefore the win should be treated as a post separation asset and nothing to do with the marriage. The Judge rejected the argument that the parties had been separated since 1996. On the evidence it was clear that the parties had not separated until 2003 although he accepted that the marriage had been an unhappy one for some time.

The Judge said that the wife had, off her own bat, been playing the lottery for some time. She had not informed the husband she had been buying tickets out of her own earned income. He came to the conclusion accordingly that the initial win of £500,000.00 was to be treated as a non-matrimonial asset. However as she then went on to put part of the money into a house which then became the matrimonial home she in effect invested that proportion of the  money into the marriage and therefore part of the winnings had to be treated as a matrimonial asset.

The Judge in considering what the husband should receive looked in the first instance at the needs of the parties. He concluded that the husband had need of a lump sum of £82,000.00 in order to provide for his old age. Such a sum would leave the wife more than enough to meet her reasonable needs in her old age.

He did not consider that sharing the matrimonial home between the parties equally was justified. He said that:

‘given that the source of the matrimonial property was not joint endeavour but rather non-matrimonial property of the wife’s and given the relatively short period that the husband lived in 108 A Road, I do not believe that the husband is entitled to an equal sharing of it, or anything like it. I judge that a sharing of 15-20% would be fair. The value of the property after costs of sale (but ignoring the mortgage) is £480,150. My assessment of the application of the sharing principle gives a range of award to husband of £72,000 – £96,000’

The Judge went on to say that he thought the right result would be to award the husband £85,000.00.

It is interesting that the wife in her evidence did not endear herself to the Judge. The wife initially had argued that she had not in fact won £500,000. She said that it was her close friend who had won and out of the kindness of her heart had agreed to share her winnings with the wife. It was quite apparent from the evidence produced that the wife had been a co-winner and her attempts to mislead the husband and the court were clumsy and clearly misconstrued.

The judgment is interesting because we come back to the thorny question of what assets should be ring fenced and why those assets should not go into the pot in their entirety for sharing between the parties. One can perhaps understand assets that were brought into the marriage being ring fenced if the needs requirement has been met without recourse to them or indeed assets which one party may have acquired or built up through their own efforts alone. It hardly takes a great deal of effort or contribution to buy a lottery ticket yet it would seem that in itself was enough for the court to treat this asset as one, the bulk of which, the wife should retain.

The moral of the story clearly is if you want to share a lottery win with your estranged winning spouse  ensure that the ticket comes out of joint funds otherwise the promise of a champagne lifestyle will remain something of a distant dream.

‘With this ring I thee wed – with this cheque book I thee pay’

 A case scenario for you.

Mr. Loadsofmoney is a banker. He is married to Mrs. Iwanttospendloadsofmoney. The couple have been married for 18 years and have two children, a daughter Prudence who is 15. Prudence has spurned the materialistic teenage world and follows very modest pursuits to include doing voluntary work at the local old people’s home at weekends. The couple’s second child is a boy, Bellows who is 13 and who unlike his sister has embraced the consumerist world with a marked degree of verve and vigour and demands of his parents all the latest designer gear and gadgets.

The family live in a modest six bedroomed house with swimming pool, tennis court and a paddock for Prudence’s horse Pegasus. Mr. Loadsofmoney works long hours in the city. His wife gave up her career as a potential supermodel and finder of world peace to support her husband in his career and to bring up the family and maintain a suitable home to reflect the status of the family. Despite the world recession Mr. Loadsofmoney’s job looks reasonably secure and on the surface all looks very rosy for the family. Mr. Loadsofmoney expects to hit his target this year and expects a good bonus. Last year he earned 1.2 million. However, his wife is suspicious of the number of nights her devoted husband says he has to work late at the office and one day whilst he is out she accidentally hacks into his personal emails and discovers a swathe of emails between him and his new PA a Miss Hopeful which clearly show that their relationship is more than professional. That evening the errant husband is confronted and admits that he has fallen in love with Miss Hopeful and the marriage is over. He was going to tell his wife but had been waiting for the right time. Mrs. Iwanttospendloadsofmoney does not take the news well and throws him out of the house. The next day she goes to see the local solicitor Ms Grimreaper, she has heard from friends that she is good. She knows from local village gossip that she has been divorced three times and likes to play golf. The wife surmises that she must have a good swing and given  the number of times she has been divorced she must know her way round the divorce arena.

The husband calls one of his friends who is a corporate lawyer. He’s never done family law before but tells the husband that it ‘can’t be that difficult and doesn’t everyone collaborate now anyway or something.’ He tells the husband that he needs to make a quick offer to the wife and everything will be fine. The husband decides when the divorce papers arrive a few weeks later that he is suffering from post traumatic stress disorder following the banking crisis and the vilification of bankers by the media and the world at large. He decides he needs a sabbatical and goes to stay in his modest 4 bed roomed cliff edge, sea view villa in Spain to have some ‘me time’. 

The divorce proceedings wend their way through the courts. The husband receives his wife’s Form E and is horrified by her income needs schedule which he tells his lawyer is outlandish. His he expected to keep her in the lifestyle that she has grown accustomed to? She can work can’t she? The husband objects to her request for maintenance for life. That is so unfair he rants. Everything we have is down to me etc. etc. etc. The case does not settle and the parties pitch up at Court for the financial dispute resolution (FDR) hearing. After some robust words from the Judge and the parties’ respective counsel the case is settled. The wife secures her lifetime order for maintenance and a fair share of the capital, not as generous as she had expected but enough to keep the wolf from the door and to assist her in launching her new career as a hopeful contestant on the X Factor. The husband laments that he is going to be tied to this maintenance order for life unless she dies or re-marries, why is that fair,  will he ever be able to have a clean break from her?

This of course is all rather silly and a parody of life ( I jest). The court when considering making a maintenance order has to consider whether the order should be payable on joint lives or whether it should be a term order. The court has to consider whether the recipient will be in a position in the future to be financially independent and whether if the maintenance were stopped they would not suffer undue financial hardship. The court also factors in the earning capacities of both parties and any likely increase in that earning capacity in the future. With our friend the banker above and his earning capacity combined with the length of the marriage and the lack of any real earning capacity on the wife’s side he was never going to secure a term order for maintenance. The question is when is a term order appropriate? There are those who say that a maintenance order should only be for joint lives where there is no prospect of the wife( it is usually the wife who is claiming) earning a sufficient income to maintain her due to age or where there are very young children. There is an expectation that the husband should not been seen as ‘meal ticket for life’ in every case and where the other party does have an earning capacity it should be used with a view to gaining financial independence in the future.

Variation of maintenance applications are common certainly where there is no term order. Applications are made when the payer is reaching retirement and their income is to drop, at that stage they look to cut their financial ties with their ex-spouse for good. Of course spousal maintenance by law ends on the re-marriage of the payee, in the case of our friendly banker’s wife above she would need to choose her next spouse most carefully lest she find herself bereft of a substantial income each month. No doubt her ex-husband, Mr. Notsomuchmoneyleftnow, is scanning the internet dating sites as we speak seeking out a suitable future spouse for her.

My Freedom for a Cat – The Human Rights Act in Action

The press this week has been lapping up the furore between Kenneth Clarke and Teresa May  (she of the collection of interesting shoes) over the use of the Human Rights Act in the case of a Bolivian student who faced deportation and raised the issue of his attachment to his cat ( Maya) who was part of his family and the impact it would have on his feline friend in the event that he was deported. Judge James Devitte the first instance Judge referred to the cat (among other things) when he said that he should not be deported. The decision was later overturned. My own experience of cats is that they show more allegiance to the food bowl than to the hand that feeds them. The case however has caused a cat fight between Teresa May and Ken Clarke with the former reportedly saying the Act should be scrapped.

After the Second World War Europe saw the need quite rightly to protect basic human rights influenced by the already Declaration of Human Rights. The Council of Europe States created the Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 which the UK ratified. The European Court of Human Rights was established in Strasbourg. The initial intention was to ensure that the tyranny that had reigned during the dark days of the war should never be repeated.

The Human Rights 1998 came into force on the 2^nd October 2000 and gave further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention of Human Rights. These rights effect all areas to include the right to have a fair trial, the right to liberty, the right to marry, the right to an education, the right to enjoy a private and family life to name but a few. All public authorities have a statutory duty to act compatibly with the ECHR and the HRA this means that the NHS, hospitals, health authorities come under the umbrella of this legislation. The domestic courts are obliged to interpret laws which should not be inconsistent with the HRA.

The two most relevant Articles in the context of family law proceedings are Articles 6 and 8. Article 6 allows everyone to have a ‘fair and public hearing within a reasonable time by and independent and impartial tribunal established by law’ the press may be excluded from all or part of the hearing in the interests of morals, public order or national security.

Under Article 8 ‘everyone has the right to respect for private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safely or economic well-being of the country for the prevention of disorder or crime for the protection of health or morals or for the protection of the rights and freedoms of others’. In the forum of public law cases i.e. those cases where the local authority intervenes in the context of care proceedings the impact has probably been more profound. The ethos is that there shall be no interference by a public authority with the exercise of the right to a private and family life such as in accordance with the law and as is necessary in a democratic society. 

This in effect means that everyone has the right to their private life, your family life, your home and your correspondence without interference from the Government. You do of course have to respect the rights of others.

There will of course be many occasions when the state in the form of public authorities have to intervene in particular in the removal of children who are at risk. This however does have to be done under the careful auspices of the law. Such a significant step as removing a child from their family has to be quite clearly based on compelling reasons and has to satisfy the threshold criteria set out in the Children Act. Again there has to be a balancing exercise between the welfare of the child and walking rough shod over the parental human rights. There can be no more draconian and extreme step to take than removing a child from their family home, however as in all cases that involve children the welfare principle will always prevail.

The Children Act 1989 introduced the concept that the welfare of the child was paramount. There can be friction between the paramountcy principle and the HRA with the latter endeavouring to balance this with the rights of the parents. In many cases brought before the court for residence, contact, the removal of children from the jurisdiction permanently the rights and welfare of the child will always trump the rights of the parents and what they may want.

One final note on the ‘catgate’ saga I note Ms May during her party conference speech when she lambasted our immigration laws appeared to be wearing shoes sporting cat like leopard spots, I sincerely hope that Maya was not a spotted tabby and being bereft of a home was not kindly taken in by Ms May who proceeded to make very good and pragmatic use of him.

Journey’s End

Today is the September equinox when apparently the tilt of the Earth’s axis is inclined neither away from nor towards the Sun, the centre of the Sun being in the same plane as the Earth’s equator. Around the time of the equinox day and night have approximately equal length. In our comings and goings today this may have no relevance or impact at all on any us. Its Friday, the weekend beckons and despite the gloomy economic forecasts – (is it time to pack my bag and head for China, I wonder?) life goes on. There is however something comforting to know that despite the man made chaos we seem to have created the world does indeed keep turning on its axis and whether the markets fall or rise  nature holds little regard for the FTSE index or whatever other index we seem to be slavishly tied to.

In my daily dealings with clients it is often very difficult for them to see the bigger picture. When your life is in crisis and an uncertain world lies beyond the confines of a broken marriage or relationship the here and now is very real. The initial consultation with a client is extremely important. It is essential that the client can tell their story and that you listen. The story may at times appear random and not in any particular chronological order yet what they begin with first may well be what is most important to them. It is very rarely the issue of money, but usually the children how this will affect them, will they be able to maintain a home, how will they share the care of the children? In some first appointments the client has talked solidly for an hour and I have in fact said very little, at the end of which they say how helpful the meeting was. It is strange how talking to a stranger can be so much easier than talking to someone you know.

In many cases clients have never had any previous contact with the legal process and have no idea what to expect when they meet a solicitor for the first time. Some clients are visibly shaking when they see me, others are extremely angry and hostile, such hostility is not directed at me (I hope) but at their situation and the injustice they feel at having been placed in this mess.

It is very difficult often for clients to see the end of the process, to think that they will come out of it at the other end. I reassure them that they will and how well they come through depends on how they wish the case to be conducted and the attitude they adopt to wanting genuinely to settle and ultimately move on. Earlier in the year I finished a case which for the client who had not wanted the divorce was very painful and difficult. For most of the duration of the process she was in a high state of anxiety and clear distress. Taking instructions was challenging. Despite my many assurances that financially she would be better than alright my optimism fell on deaf ears. Sometime after when the case had settled she called me to say that actually she had just now realised that she had done alright and that there was life after divorce.

There will always be clients who will want to litigate and there will be those who want to settle and try and be amicable. It does however take two to tango and in some cases one may be reasonable the other side not. They are of course advised that court is the last resort when negotiation, mediation etc breaks down. I explain the court process to them. I reassure them that along the way they will still be encouraged to settle and depart from the court process as quickly as possible, a negotiated settlement is going to make them feel better than one imposed on them. For some clients they believe that going to court will reinforce everything they have said and thought about their estranged other half. They will be vindicated. It is rarely the case. It is a process whereby the court painfully picks over the bones of their marriage, there is no sentiment involved. I would not call it a salutary experience.

The legal process is a labyrinthine path that twists and turns. Some clients enter the legal labyrinth hoping like Theseus to slay the Minotaur within and return triumphant. The lawyer may well provide the twine to lead them out, whether they however succeed in slaying the beast is another matter.

The Fragile Mind –  psychological assessments in children proceedings

In my last blog I looked at the role of the single joint expert in the context of their role primarily in the valuation of assets in financial cases. However the role of the expert in children applications can be pivotal. In the majority of applications for residence and contact those involved in the process are usually limited to the parties themselves, their respective lawyers, mediators, CAFCASS and the court. In some cases however it is necessary to drawn upon the skills of others i.e. where the court considers it appropriate for a psychological or psychiatric assessment to be undertaken. In the context of public law proceedings i.e., those proceedings where children have been taken into care it is common practice for the parents to be assessed. When would the court consider it necessary in private children applications to order an assessment?

It is not unusual following the breakdown of a relationship or marriage for parties to make allegations about the other parent concerning their parenting skills in particular where there are issues and disputes between the parties about residence and contact. It is of course very easy to make allegations however in the forum of the court such allegations will be subjected to the incisive scrutiny of the court and to a large extent must be corroborated by evidence. In some cases one parent may have a history of depression, addiction to drugs or alcohol or indeed may have a history of mental illness. If one parent raises these issues and concerns in relation to their ability to properly and effectively parent a child the court has to consider carefully the seriousness of the concerns and the full nature of the allegation. It is not of course uncommon for people following the breakdown of their marriage to feel depressed and anxious at the prospect of an unknown world that may lie ahead of them. It is however a very large leap from that state of anxiousness to say they pose a real risk to their children if they were allowed for example unsupervised contact.

In applications made to the court under the Children Act, the paramount consideration for the court is the welfare of the child and if one parent may pose a risk to that child, the court is duty bound to require a full investigation into that risk and how of course if a risk does exist, it can be addressed and hopefully removed.

When instructing an expert to undertake a psychological assessment it is essential as in instructing any expert that the instructions given are clear and unambiguous and clearly set out what it is the expert is to report on. It is also important to inform the parent who is to be the subject of the report what will be expected from them. The expert will generally need as much relevant information as is available about the parent and will want to have access to other sources of information for example medical history, contact with social services etc. An interview will take place with the parent. They will want to talk at length with the parent about their family history and any significant issues that may have arisen in the context of their own family to include their relationship with the family, their peers and the strength or not of their emotional attachments to those who form part of their family circle. Families and family relationships are of course complex and some may be reticent to divulge specific issues which may run very deep in the psyche of the individual. For others they may not realise that their current behaviour patterns could have been formed long ago during the history of their own lives.

The expert will generally want to see the parent with the child, to assess how they interact and how the child relates to the parent. They will be looking at the level of attachment between the parent and child or in some instances the lack of any attachment.

It is not uncommon for patterns of behaviour and indeed parenting to be passed on down the years and through generations, for example if there was a history of abuse that can in itself be self-perpetuating. The expert’s role is to pull together all the threads of what can be a complex history and long learned behaviour patterns and to present to the court a clear report on what their findings have revealed and in particular if this parent does pose any kind of risk, if so in what sense and to offer some guidance on how, if possible, that risk can be miminised or indeed extracted from the equation.

It is important to remember that these types of assessments will only be ordered by the court if there is good reason to do so. The fact that parents may simply have different parenting approaches which may cause some friction between the parties or one feels that they are simply the better parent than the other will not lead to assessments of this nature being undertaken.

It is of course very difficult in some cases to ascertain whether one party may actually need an assessment. It is the role of the lawyer acting for the concerned parent to take very seriously any allegations the client may make about concerns they have over the parent’s mental health. Mental stability can become very fragile when subjected to the stresses of a marriage in meltdown. The skill is endeavouring to identify those that have the resources to recover and continue to be effective parents and those who simply are unable to rise to the surface but instead look to take everyone down with them in the sinking ship.

Unmarried couples warned over property rights

Many unmarried couples are buying a property together mistakenly believing that if the relationship breaks down they will be entitled to the same financial settlement as a married couple, a local family law specialist has warned.

“As the law currently stands unmarried couples do not share the same rights as married couples in the event that their relationship breaks down, even if it has lasted several years and the couple has children,” explains Helen Saggers of Barr Ellison Solicitors. “If the couple was married then a divorce court does have discretion to look at the contributions the parties made to the marriage and what each brought into the marriage. Even in cases where the home is purchased in one party’s name or was owned pre-marriage, once it becomes the marital home the non-owning spouse automatically acquires an interest in the property.”

This issue has come to light this month as the decision of a Supreme Court case that could affect the rights of unmarried couples is awaited. In the case of Jones and Kernott, Ms Jones is appealing against a Court of Appeal case that overturned an original judgement giving her 90 per cent of a property the couple bought together. The Court of Appeal reduced this to an equal share. They had been separated for 13 years before Mr Kernott asked for his share of the property, during which time Ms Jones paid the mortgage, maintained the property and supported two children without any financial input from Mr. Kernott.

If the Supreme Court reinstates the original order that decision will have a significant impact in this area of the law, says Helen.  “Up until now if the parties bought a house in joint names in equal shares and there was no evidence of any intention to change the terms of ownership post purchase the Court had no option but to follow the terms of the original purchase. This has lead to very unfair outcomes in particular where one party during the course of the relationship may have made a substantial contribution to the property or paid off the mortgage.”

So what should unmarried couples do before buying? “It is essential that if unmarried couples are buying a house together then they must think about what shares each of them are to have in the property. If one of them is putting down a large deposit and the other nothing if they hold the property in joint names in equal shares and the relationship were to break down that contribution may not necessarily be recouped.  If they are aware of this and plan ahead then they won’t receive the stark wakeup call I have seen with clients when they find out that, despite years of living together and bringing up children, they may be left walking away from the relationship with very little except a bitter taste in their mouth.”

Helen can be contacted on 01223 417200

Unity or Division? – the role of the joint expert in divorce cases

The value of assets in a divorce case can often be a bone of contention between the parties depending which side of the fence you are sitting on.  For example for the spouse who wants to remain living in the matrimonial home and is trying the buy the other out of their share of the property they will be looking for the lowest valuation possible. For the other half they will want the highest price, so the lines of division are drawn. It is frequently the case where the parties cannot agree on the value of an asset to include property, businesses, and personal assets for example jewellry, an art collection, antiques etc. that a single joint expert is instructed. It is important to remember in particular with the valuation of small businesses that proportionality is the key when considering calling an expert in to value.  In the case of a small family run business that has no capital assets, having it valued may serve no purpose at all. 

The law and practice in instructing experts is to be found in Part 35 of the Civil Procedure Rules 1998. The usual practice is for one party to produce the names of three experts with their accompanying cvs and for one to be agreed upon. Thereafter a joint letter of instruction is drafted, agreed by the parties and dispatched to the expert. In cases, which are not uncommon, where the parties cannot get over the first hurdle of actually agreeing what should be included in the joint letter of instruction the rules provide that each side can send their own letter of instruction to the expert. The expert upon receipt will confirm their terms of business and the cost of preparing the report. In the majority of cases the costs of the expert are paid by the parties in equal shares.

The expert will be informed that their overriding duty is to the court and not to the parties. When valuing a property e.g the matrimonial home, most experts prefer neither party to be in attendance when they make their visit. It makes their job easier if neither side is there, one pointing out the defects of the property the other stating the property is worthy of featuring in an episode of ‘Grand Designs’. If the expert has any questions these must be put to both sides. All communications must be transparent and addressed to both.

The interesting part follows when the report arrives and you are left managing the deflated expectations of the client when the family heirloom turns out to be something that was knocked up in the garden shed one Saturday afternoon. Both sides are entitled to put questions to the expert. These questions must be put to the expert within 28 days. The questions must be confined to clarifying any aspect of the report. The expert cannot be given further instructions. The answers given by the expert will form part of the original report. Where the answers to those questions do not satisfy the party raising them and they have formed the view that the expert has simply got it wrong they can ask for another expert to be instructed on their side. If the other side does not agree then we have what is called a Daniels v Walker argument. The permission of the Court will have to be obtained before any further evidence can be put before the Court. In the Daniels v Walker case the Court confirmed that where one party is not happy with the answers given by the expert to questions then they should be entitled to seek further evidence of their own. The object of the court is to endeavour to deal with cases fairly and if there is justifiable cause for one party to assert the expert has got it wrong they are entitled to be heard. Once the second expert is on board if their opinion differs from the first the court will require them generally to meet and see if they can reach some consensus, if not than both will be required to attend court and give evidence at the final hearing.

It is important at all times to consider the costs that will be incurred in the context of the value of the case. It may be wholly disproportionate to what is at stake to have two experts attend a final hearing to give evidence. It is crucial that the parties take a pragmatic approach otherwise they may find themselves not only with a devalued asset but also on the wrong side of a costs order.

Madness Mayhem and the Museum of Broken Relationships

You will no doubt have seen recently in the tabloids that the Museum of Broken Relationships has come to town. An interesting concept devised by Drazen Grubisic and Olinka Vistica who have invited those to contribute to their museum various objects which either once were treasured love objects or which simply summed up the nature of their relationship before the rot set in and it all disintegrated. The most interesting and bizarre object to me was the prosthetic leg which came with the caption it ‘endured longer than the love and was made of a sturdier material than the relationship’. Another was a candy G-string which was accompanied by ‘he was as cheap and shabby as his present’. The grandest donation in thought and actuality was a grand piano, a gift given to the woman by her lover after a short and tumultuous relationship, a grand gesture in every sense of the word.

It certainly made me reflect on the strange things people do when a marriage or relationship breaks down and when such behaviour crosses over into criminality. It is important to advise clients in what they can and cannot do when they are in the throes of a divorce. Clients will often intercept the other’s post in particular if they consider they are hiding assets and being less than honest in their financial disclosure. This is an offence under S84 of the Postal Services Act 2000, to quote from the Act a person commits a criminal offence if without reasonable excuse he intentionally delays, or opens a postal packet in the course of its transmission by post or intentionally opens a mail bag. A person commits an offence if intending to act to a person’s detriment and without reasonable excuse he opens a postal packet which he knows or reasonably suspects has been incorrectly delivered to him. The crime is punishable with a maximum penalty of six months imprisonment. On many occasions clients will say ‘this came in the post for my other half and I opened it by mistake’. The only answer is to give it straight back to the rightful owner and to confirm that it will not happen again. It is not alright whether you are married or estranged to open someone else’s post without their express permission.

Damage to the other’s property is again a criminal offence whether you go rampaging through their wardrobe of clothes with a pair of shears or pour acid over their car which happened to a client of mine. In one case of pure hate a husband who was required to leave the marital home so his estranged wife and young son could move back in left a number of parting messages. He painted all the rooms black, tampered with the glass roof in the conservatory by removing the screws that held it together, tampered with the electrics in the house, embedded nails in the up and over garage door facing outwards and etched expletives in the windows of the house. Suffice it to say he was arrested and charged with criminal damage and threats to kill as his actions could have caused serious harm not only to his ex-wife but to their son, the thought of which sadly seemed to have been totally lost on him.

I have clients who tell me they have evidence of the other’s adultery as they have seen incriminating emails they have sent to their lover. When asked how they obtained these emails the answer is ‘I hacked into their computer’ – not a good move. It is a criminal offence to interfere with a third party’s computer punishable with a fine of £5,000.00

Persistent harassment is an offence whether it is in the form of telephone calls, letters, emails etc. Parties are afforded protection form harassment under The Protection from Harassment Act 1997. Long gone are the days when the police would not touch ‘domestics’ with a barge pole. They take any complaint of harassment seriously and will in the first instance send a warning letter to the offender if they persist they will be arrested and charged if found guilty they could face six months in prison.

In many cases the victim often does not want to press criminal charges. Divorce and its aftermath is an emotional rollercoaster and the last thing on client’s minds is to involve the Police if they can help it. They may feel in some way the other is justified in their actions because of what they have or have not done. It is often flawed thinking but understandable.  When emotions are running high objective thought is frequently on vacation.

I come back to the strange Museum. There must be a slightly voyeuristic bend to it. Of course it is human nature to be drawn to and fascinated by the lives of others whether those lives are glorious or rather sad. The objects displayed no doubt reflect the madness of love and the mayhem that can ensue when love does not endure. I wonder if one day I find myself in that predicament what I may contribute to such a collection I doubt it would be as grand as a piano but I hope that it will be slightly more noble than a pair of ‘candy pants’.

Pre-marital wealth – where does it go on divorce?

A frequently asked question is how pre-marital assets should be treated on divorce? It is not uncommon for one party or indeed both to bring into the marriage assets that they owned before the marriage. When the marriage flounders they then seek to ring fence those assets on the basis that they should not form part of the matrimonial pot for distribution. Is that approach fair and how do the courts deal with this issue?

The Judge when dealing with financial applications has a wide discretion to make whatever order he considers fair. Notwithstanding the exercise of discretion there should be some degree of consistency of approach in cases of this nature otherwise advising clients as to the possible outcome of their case should it fall in the lap of a judge becomes simply a best guess exercise. It is established law that the pre-marital wealth has to be treated as a contribution by one party which is not matched by the other and how it is treated on divorce will turn on the value of the contribution and how it was treated by the parties within the marriage (White v White).

The Court will consider whether the wealth went into the matrimonial pot during the marriage or whether it was kept specifically outside of the parties other assets as a distinct and untouchable asset. The Court will look at what other assets the parties have accumulated during the marriage and whether those joint assets if divided would meet the needs of the parties in particular the spouse who has no other assets apart from those acquired during the marriage. Even in situations where there are sufficient assets to meet need the Court cannot simply disregard the wealth of the other and will treat such wealth as a resource available to them.

In the recent case of N v F (2011) this issue was addressed by Mostyn J. He concluded that:

‘Whether the existence of pre-marital property should be reflected at all. This depends on the questions of duration and mingling. It if does decide that reflection is fair and just, the court should then decide how much of the pre-marital property should be excluded. Should it be the actual historic sum? Or less, if there has been much mingling? Or more, to reflect a springboard and passive growth. The remaining matrimonial property should then be divided equally. The fairness of the award should then be tested by the overall percentage technique’.

The emphasis is again on fairness. If one were to exclude the pre-acquired wealth and divide what is left would the percentage shares each then have be wholly disproportionate and therefore inherently unfair in particular in the context of a long marriage. It is likely in the latter case that the pre-acquired wealth would have been intermingled with the parties’ matrimonial assets and therefore more problematic to exclude. If its exclusion leaves the other at a disadvantage and unable to meet their reasonable needs than it would only be fair and right to add a percentage back into the pot for distribution.

In the majority of cases the ‘needs’ argument outstrips the contribution argument. If on exclusion the needs of the other cannot be met then it is added back to the pot. In those cases where the assets of the marriage exceed the parties reasonable needs the arguments for exclusion become more robust when justifying a departure from the equality principle.

For those parties who brought the wealth into marriage it can be a bitter pill to swallow to contemplate parting with some of their cash to their now estranged spouse. From their perspective they follow the creed ‘what’s mine is mine and what’s yours is ours’. During the marriage they may well have been happy to intermingle the parties’ finances but views quickly change when the divorce petition lands on the door mat and the battle lines are drawn.  The concept of fairness and sharing unfortunately can in their eyes seem nothing more than a travesty of justice and a gross unfairness.

Shared Care and the Wisdom of Solomon

The story goes that God asked King Solomon what it was that he wanted most. Solomon did not ask for wealth or long life ( I am not sure why, he was obviously of a more nobler disposition than me) but instead asked for judgment in administering justice which is apparently what he got and the wisdom of Solomon has transcended  the ages since. The most famous story being of course of the two women who both proclaimed to be the mother of a baby. The baby was put before the King and in the days before DNA testing Solomon announced that he would cut the baby in half. One of the women agreed the other said no that she would rather see the baby live with the other than meet such a fate. Solomon said that the latter must be the mother as she would rather surrender the baby to a stranger than see the baby die.

I mention this story as although in our modern judicial system judges rarely suggest in disputed residence or contact cases that a child should actually be cut in half. They may suggest the parents be taken away and sent to parenting classes to try and instill some sense of perspective in their ongoing disputes and be alive to the impact their actions can have on the children. The significance of the story is that parents often insist on splitting the time their children spend with each parent rigidly on a 50:50 basis when it is not always right for them.

Historically in the dim past when I started practicing if I had suggested to a judge that  the children of divorcing parents should spend equal amounts of time with each parent post separation I would have been castigated as some deranged heretic and driven from the confines of the Court. The traditional order was that one parent normally the mother would be the main carer and they would have custody care and control of the child and the father would have access normally at weekends and during the holidays. The line was that the child needed one stable home. The rather perverse inference being that the child could not possibly have two stable homes with each parent.

Post The Children Act 1989 the terms of custody and access were replaced by residence and contact orders and the concept of parental responsibility was born. Times have moved on considerably since 1989 and the Family Justice Review interim report recommends that the terms of contact and residence orders should be abolished completely where parents who both share parental responsibility are in dispute. They recommend that in disputes over children the Court should simply define in the order when the children are to spend time with each parent. The thinking behind this is to stop the parent who has the residence order from lording it over the other who only has a contact order. The point was made by Mostyn J in the case of Re AR which was a relocation case. He took the view that too much baggage accompanied the tags of sole residence and contact orders and in abandoning such terminology it would reflect the reality that both parents in fact have shared care of their children. The Court can of course, where the parties reach agreement, exercise the’ no order principle’ on the basis that the parties have managed to resolve their differences and it would be wiser to have no order at all. I have to say I find in my experience the ‘no order principle’ is not used that often. In the majority of cases parents who have gone down the litigation route need the certainty of an order. In many cases an agreement reached has been preceded by a long and somewhat fraught history of argument, negotiation and compromise and it is unlikely that simply going away with a pat on the back from the Judge is enough they want an order which of course they can enforce if it all goes horribly wrong.

Shared care does not of course mean the children have to spend equal amounts of time with each parent. In some cases however the parents become quite fixated on just that. They expend an awful lot of time and energy on working out to the last minute when the child is to be with each parent. I have had presented to me spreadsheets showing the machinations of this often tortuous arrangement. I know in some cases splitting time equally may well work but in others it becomes a logistical nightmare placing enormous pressures not only on the children but the parents as well. It is of course essential that both parents be involved in the child’s life but like a lot of things in life it is the quality not the quantity that counts. May be in some cases parents should exercise the wisdom of Solomon in suggesting such an extreme solution one parent sees the madness of it and concedes to the other for the sake of the child.