News Flash
It seems likely that the family courts are moving closer towards accepting pre-nuptial agreements as legally binding contracts.
See this link for the latest: PRE-NUPS
Maintenance Capitalisation and Remarriage
This solicitor blog is an interesting read: in particular the following extract (written by John Bolch) about the lack of clarity in Family Law when it comes to dealing with maintenance and gender (This month's newsletter topic - subscribe to receive).
The judgment of the Court of Appeal in Dixon v Marchant, handed down yesterday, may, I think, lead to some debate, and not just amongst family lawyers. It dealt with the vexed question of remarriage shortly after the making of a consent order, and whether it constituted a "Barder event", invalidating the order.
The facts were as follows: On 4th February 1993 an order was made providing, inter alia, that the husband, Mr Dixon, pay his wife periodical payments at the rate of £15,000 per annum during their joint lives or until her remarriage or further order. In August 2005 Mr Dixon's solicitor wrote to the wife informing her that he was about to draw down his pension, that his income would be reduced accordingly and that he had grounds to make an application to vary the maintenance. He requested details of her financial position and asked specifically whether she was cohabiting. The wife's solicitors replied that she had no intention to cohabit and suggested that she would be happy to capitalise the maintenance. After some negotiation this was agreed and on the 25th April 2006 an order was made by consent requiring Mr Dixon to pay £125,000 on or before 1st May 2006. The application for the consent order was accompanied with the prescribed statement of information in which the wife declared that she had "no intention to marry or cohabit at present". She remarried on the 3rd November 2006 and when Mr Dixon discovered this, he applied to set aside the order, "as new events have occurred since the making of the consent order which invalidates the basis and fundamental assumption upon which the consent order was made". The application was refused, and Mr Dixon appealed.
Lord Justice Ward dismissed the appeal, finding that the wife had been honest in stating her intentions when the order was made, and that the basis of the consent order was "no more than the straightforward capitalisation of the wife's periodical payments to achieve the common desire for a clean break" - there was no fundamental assumption "that for an indefinite period to be measured in years rather than months or weeks, the wife would not remarry". He stated that the fact that Mr Dixon "had to take the chance of her remarriage was in accordance with accepted orthodoxy which has prevailed for more than 30 years" and that: "Payment of a lump sum carried risks for both parties – a risk for the husband that the wife would remarry so that he would have been better off paying her maintenance until that obligation ceased on her remarriage, and a risk for the wife that a lump sum crudely based, on the face of it, on a multiplicand of no more than seven years or so at £15,000 per annum might be exhausted during her life time". Lord Justice Lawrence Collins concurred, but Lord Justice Wall dissented: "In my judgment," he stated, "...it seems to me clear that the fundamental assumption behind the agreement, and critical to the making of the order, was the assumption that Mrs. Dixon would not remarry, in Lord Brandon's words [in Barder] "for an indefinite period, to be measured in years, rather than months"". He concluded: "my view remains that on an objective assessment, the proposition that Mrs. Dixon would not remarry within the Barder time-scale was the fundamental albeit tacit assumption upon which the order was made. I do not agree that "the risk of remarriage" within the Barder time-frame was one which Mr. Dixon "had to accept"".
The prospect of remarriage is a regularly recurring theme in ancillary relief cases. Whatever your views upon the decision in this case, it seems that intentions must be made clear in the order. As Lord Justice Ward said: "Though the agreement could have included whatever recitals were appropriate to spell out any common assumption about a moratorium on the wife's remarriage, there was nothing in this agreement which would have alerted the judge to the parties intending to give the husband any right to claw back any part of the lump sum if she should remarry soon after the payment had been made".
New Year Action
3rd January 2008
Demonstrators braved the cold today to make their point about the injustices dealt out to consumers at the hands of the British legal system.
The following extract taken from a press release by Victor Lewis Nicholson shows a desperate need for further change in a system that is letting consumers down.
dated 26 December 2007
There have been many debates recently in both the House of Commons and the House of Lords and also a proposed BILL aiming to give protection to the public from dishonest and corrupt Solicitors. The Law Society was formed some 200 years ago which should have given plenty of time and opportunity to put regulations in place to protect Solicitors’ clients. There is even a rule book entitled - Guide to the Professional Conduct of Solicitors. These rules are observed by some members of the legal profession more in the breach than the observance. Those Solicitors regard a Practising Certificate as a means to commit legalised theft, and because of the failure of the Law Society to punish dishonest Solicitors, they consider themselves Jesus Christ and can walk on water. The Law Society set up the:- Solicitors Complaints Bureau (SCB); Office for the Supervision of Solicitors (OSS) ; Consumer Complaints Service (CCS); and latterly the Legal Complaints Service( LCS).. These organisations have one common thread: They have all failed to protect the public from corrupt and dishonest Solicitors. Now there is a new Solicitors Regulatory Authority (SRA). It appears that whenever government announces that the Law Society is in the “Last Chance Saloon” because of its failure to deal with the increasing number of complaints against Solicitors, the Law Society merely changes the name of its regulatory body. The Law Society’s Solicitors Disciplinary Tribunal’s Annual Report up to April 2007 reveals that only 67 Solicitors were struck off the Solicitors Roll when up to 17,000 Solicitors are reported to the LCS year on year. Various organisations are now established in an attempt to expose dishonest Solicitors. Some of these organisations have had their websites interfered with. The latest scandal to hit the legal profession is the increasing number of Solicitors’ clients who are having their homes possessed and declared bankrupt, because of their refusal to pay exorbitant and disputed legal fees. Court processes are being manipulated for the benefit of these dishonest Solicitors by means of the Insolvency and Enterprise Act which does not protect clients who are solvent but have been made bankrupt; preventing the client who is bankrupted by the Solicitor to take anyone, including their Solicitor to court. This means they are unable to challenge the Solicitor’s bill in a court, which is a fundamental denial of human rights: apart from the fact that a bankrupt cannot apply or receive legal aid. Many are described by judges as vexatious litigants. A demonstration held outside the Royal Courts of Justice and the Law Society on 22nd October 2007, in protest at Solicitors generating bankruptcy petitions against clients was well supported by the general public and attended by Dr.Vincent Cable the Deputy Lib.Dem Leader. Yet the media showed no interest in reporting the demonstration, even though a petition was handed in to 10 Downing Street voicing concern at the failure of the Law Society’s regulatory systems which has yet to receive a response.
Comment
Article: French lawyers strike in protest...
Power to be removed from the hands of French divorce solicitors
Could it have been French President Sarkozy's own recent divorce experience, that initiated a new ruling in France recently, which will allow divorcing couples to avoid French solicitors altogether and get their divorce through a notary? This is a significant development. Certain divorce cases in France can now be dealt with outside the courts, avoiding the divorce solicitor trap. Naturally, French solicitors were not too happy about this dramatic ousting from the lucrative divorce market. Staging a mass strike, they threw down their robes in gallic disgust and walked out of court. Oh dear. Feeling sorry for them?
Got a comment? Let us have it...
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Who Gets the Dog?
Sundays ITV1 - comedy drama with Kevin Whately and Alison Steadman
Interesting sitcom about a middle aged couple having difficulties after 27 years (husband is on the verge of an affair). After `advice` from a friend, the wife instructs solicitors at what seems to be early stage of the breakup. We get the feeling that if she hadn`t done that the couple would have talked more and maybe patched things up. The start of the onslaught of solicitor letters sends things from bad to worse as the two opposing solicitors get embroiled in their own little games and the sitcom very obviously shows them as dealing with their clients as `punters`, whilst they very much have their own personal agendas as top priority - flirting with each other and making bets as to who`s going to win the issue of `who gets to keep the dog` - the winner promising to take the other solicitor for a dirty weekend at a luxury hotel!
On one occasion it shows the wife about ready to patch up with her husband, but at that point another antagonistic solicitor letter arrives, so the moment for reconciliation passes. We get the impression that what both husband and wife want and need is mediation: both of them want to be kind to each other but solicitors make things worse, not least by the way they formulate their antagonistic letters.
Ring any bells?
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All Aboard for Divorce Reform
Divorce Solicitor Trap takes to the road to promote change;
From Brighton to London
Heading out on the road from a suitable start point for a fruitful journey: Banana House (a rambling cottage in Dorset), the Divorce Solicitor Trap team set their sights on Brighton - seaside resort of rock and according to our research, divorce shock. Brighton is one of England's divorce hotspots.
It isn't easy to paint a true geographical picture of divorce distribution, but one factor quoted as contributing to high divorce rates is said to be low employment levels. Still, finances are not always to blame; divorce may be the bitter fruit of discontent, but like the money tree myth, the root of discontent is often hard to find.
Brighton, that said, seems reasonably prosperous on the surface. It has a vibrant community of thirty somethings, and comes across as a liberal town that wouldn't hesitate to take a plunge either way.
But all is not as it seems. One middle aged couple took receipt of a leaflet, and turning to the DST van emblazoned with campaign material, said: If you get married, you shouldn't get divorced. And that's that.
They are right of course. In an ideal world true love lasts for ever, England wins the rugby and Gordon Brown gives us a quick ring and says that yes, of course, he'll see to it that fairness to the consumer is made top priority and he'll get on the case straight away...
London offered a different picture. The team distributed leaflets at various locations around the City. One man took a leaflet then turned back. I'm a lawyer, actually, he said. In France though, he laughed.
So what do you think? we inquired. To be honest with you, he said, I would say that in a divorce, 80 percent of what we do is unnecessary. He shrugged his shoulders. But there you are.
By the end of the afternoon, we had taken two phone calls from members of the public. One woman told us about her ten year struggle for justice in the wake of divorce. It was her husband's fraud, she said, that created the problem in the first instance. But as she struggled to get a just deal, solicitor after solicitor saw to it that the legal door to fairness was slammed shut in her face. After suffering a stroke, she is left to contemplate ruin over a pile of legal files she can barely get her head around.
The real victims of solicitor exploitation stand on the fringe of society. Wiped out by legal fees that have gone beyond a joke and become a health risk, we owe it to these people to come up with a better way.
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