This week the Government suffered defeats in six key votes as the House of Lords made amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill.
On Monday, amongst other changes, Peers voted through an amendment which will help ensure that victims of domestic violence continue to receive legal aid on issues around divorce or separation, by extending the evidential criteria required to demonstrate that domestic violence has taken place.
On Wednesday the Bill suffered three further defeats in the House of Lords when amendments were made to allow legal aid to be continued for those challenging cuts in their benefit, appealing to a higher court, and requiring expert reports in clinical negligence cases.
The defeats came despite the Government announcing several concessions last week to try to appease opponents ahead of the Report Stage.
The Bill proposes considerable cuts to legal aid, including the removal of legal aid from all private law children cases (subject to limited exceptions). It was introduced in the House of Commons on 21 June 2011 and is strongly opposed by legal professionals. There are increasing fears that more legal aid solicitors will abandon their practices and that the courts system will become overloaded, with more litigants in person pursuing cases without legal advice.
On Wednesday Justice Minister Lord McNally warned peers: “This isn’t a debate about who cares most, it’s about whether this House is willing to take tough decisions about our economic situation or whether it is simply going to push the problem down the corridor to the Commons, because the Commons will have to take those decisions whether we make them or not.”
Sadiq Khan MP, Labour’s Shadow Justice Secretary, commented: “This victory provides a vital safety net for the poorest in our society. It ensures that when bureaucrats make a mistake which denies support, like disability benefits, to the vulnerable and their families then they will have expert advice in making an appeal. “
From Resolution – first for family law, November 15 2010.
Proposed changes to the scope of legal aid could put thousands of vulnerable people at risk and deny justice to countless families, family lawyers’ association Resolution has warned.
The proposals, announced today by the Lord Chancellor Kenneth Clarke, will mean that the only private law family cases that will still get legal aid for court are domestic violence or forced marriage proceedings. The only option available to separating couples going through divorce or separation will be to attend mediation, which does not work for every family, or to represent themselves.
David Allison, Resolution chair said: “Families need legal aid for a whole range of reasons. Suggesting, as these proposals do, that couples in dispute about contact arrangements for children or financial issues are simply wasting taxpayers’ money by unnecessary squabbling ignores the reality that 90% of couples already reach agreement outside of court.
“Those that do need legal aid usually do so for good reason – intimidation by one partner over another, or an imbalance of financial power in the relationship. Resolving a financial dispute through legal aid can prevent a vulnerable spouse from becoming dependent on the state.”
David Allison continued: “We are deeply worried that mediation is being seen as a universal panacea. Whilst mediation has a real and useful role to play there are real dangers in this approach, which ignores the range of non-court options.
“Family disputes are complex. There cannot and must not be a one size fits all approach.”
Resolution will be responding to the consultation paper in detail.
Notes to Editors
- Resolution’s 5,500 family lawyer members promote alternatives to court and many of them are trained as mediators and collaborative lawyers. Resolution was established 25 years ago. To find out more, visit http://www.resolution.org.uk/
From The Financial Times. By Jane Croft, Law Courts Correspondent Published: October 20 2010 11:07
Prenuptial agreements should be upheld in certain divorce settlements, the UK’s highest court has ruled, in a decision that will help wealthy individuals protect their assets and avoid big pay-outs.
The Supreme Court decided by eight justices to one to uphold a prenuptial agreement signed by Katrin Radmacher, a German paper industry heiress worth more than £100m, which was being challenged by Nicolas Granatino, her French ex-husband and former investment banker at JPMorgan.
The ruling will hearten wealthy people living in London who might be embroiled in “big money” divorces and had faced the prospect that prenuptial deals signed in their native countries would not be upheld in England.
Prenuptial deals, which specify the division of real estate and personal property such as family heirlooms, have not been legally binding in England and Wales, unlike in the US or in most of the rest of Europe.
This ruling brings England closer to the rest of Europe but stops short of making prenuptial deals legally binding as the fairness of the agreements will be assessed by judges on a case-by-case basis.
Joe Vaitilingam, partner at Hughes Fowler Carruthers, the law firm, said this “modern judgment for a modern age” should “deter gold diggers”.
Ms Radmacher and Mr Granatino married in 1998 after signing a prenuptial agreement four months earlier, waiving their rights to claim against each other’s wealth if they split.
The couple, who have two children, separated in 2006, and in spite of their agreement, the High Court awarded a £5.85m lump sum to Mr Granatino.
The Court of Appeal overturned the ruling in July, awarding him £1m ($1.6m) plus £2.5m for a house after ruling for the first time that prenuptial deals ought to be taken into account when deciding on divorce settlements.
The Supreme Court has upheld this decision, saying that in the right case, prenuptial agreements can have decisive or compelling weight.
Lord Phillips, court president, said the majority of justices “hold that in this case the agreement was freely entered into and that both the husband and wife fully appreciated its implications”.
Ms Radmacher said: “I’m delighted Britain has upheld fairness. It is important to me that no one else should have to go through this.”
But some family lawyers said the ruling meant there was a danger that vulnerable parties, usually women, could be coerced into signing unfair prenuptial deals.
Wednesday’s ruling is likely to reduce the number of legal challenges by ex-husbands to huge divorce settlements – often running into tens of millions of pounds – awarded by English judges to their former wives.
It will mean that the super-rich will be able to protect their wealth more easily.
Scores of divorce cases involving prenuptial agreements had been put on hold awaiting this decision.
Michael Gouriet, partner in the family law team at Withers said: “It would have been incredibly difficult and politically embarrassing for the English Supreme Court to dismiss a valid European prenuptial agreement out of hand, in effect saying that the English law knew better than the German.”
Ms Radmacher’s lawyers argued to the Supreme Court this year that she was worried that she could be targeted for her wealth and would not have married Mr Granatino without a prenuptial agreement.
London has had a reputation as the “divorce capital of the world”, with huge pay-outs for ex-wives such as the £48m awarded to Beverley Charman after 28 years of marriage to John Charman, the insurance magnate, and the £24m awarded to Heather Mills on her divorce from Sir Paul McCartney.
The English courts have upheld since 2000 the case of White v White which made it clear that the starting point for any divorce should be an equal split of assets.
Mr Granatinoadmitted that he willingly entered into the prenuptial deal but said he did not know the extent of his wife’s wealth and did not receive independent legal advice.
His lawyers also pointed out their circumstances when they split in 2006 were very different from when they met at members’ only Tramp nightclub in Mayfair, when Ms Radmacher was running a fashion store in central London.
Mr Granatino had since quit his City job to study for an Oxford university doctorate and has started patenting biochemical processes.
Court documents showed that Mrs Radmacher accepted that if her former husband, who has just completed his doctorate and is looking for a research post, failed in his appeal, he faced “financial ruin”.
Richard Todd QC, acting for Ms Radmacher, argued in the Supreme Court that Mr Granatino could expect to inherit millions from his parents, who are tax exiles worth up to £30m, and could easily give up academia and return to investment banking if he really was struggling financially.
The Law Commission is now examining whether the law should be changed to recognise prenuptial deals but will not make recommendations until 2012.
Copyright The Financial Times Limited 2010.
Our lawyers are members of Resolution – First for Family Law, and are committed to the constructive resolution of family disputes. We follow Resolution’s Code of Practice that promotes a non-confrontational approach to family problems. We encourage solutions that consider the needs of the whole family – and in particular the best interests of children.
If you would like to know more, please call 0113 245 0733 and ask for our Family Law department.
Separating parents can do their children enormous harm by using them as a “battlefield” and “ammunition”, a senior family court judge has warned.
Sir Nicholas Wall, president of the Family Division of the High Court, said well-educated parents were particularly adept at using their children.
Sir Nicholas said a less adversarial approach was needed in the family justice system.
He made his comments in a speech to the charity Families Need Fathers.
Sir Nicholas said: “People think that post-separation parenting is easy – in fact, it is exceedingly difficult, and as a rule of thumb my experience is that the more intelligent the parent, the more intractable the dispute.
There is nothing worse, for most children, than for their parents to denigrate each other
Sir Nicholas Wall President of the Family Division of the High Court
“Parents simply do not realise the damage they do to their children by the battles they wage over them.
“Separating parents rarely behave reasonably, although they always believe that they are doing so, and that the other party is behaving unreasonably.”
A child was not a “piece of property which can be parcelled up and moved around at will”, he said.
Figures from the Office for National Statistics show the number of divorces in England and Wales fell to 121,779 in 2008, the lowest number since 1975 when there were 120,522 divorces.
However, half of couples divorcing had at least one child under the age of 16, with a total of 106,763 under-16s in families where the parents had divorced.
Loyalty to both
Sir Nicholas said parents often found it difficult to understand that children loved and had a loyalty to both parents.
“There is nothing worse, for most children, than for their parents to denigrate each other.
“To use the trite phrase, each parent represents 50% of the child’s gene pool.
“If a child’s mother makes it clear to the child that his or her father is worthless – and vice versa – the child’s sense of self-worth can be irredeemably damaged.”
Sir Nicholas said Parliament rather than judges should decide whether shared parenting orders – where children live with each parent at different times – were to become the norm over children living with one parent and having regular contact with the other.
He added: “I remain of the view that the separated parent’s role in the lives of his or her children retains the same degree of importance as when the parents were living together, even if the opportunities to manifest the qualities which an absent parent can bring to his children may be limited.”
Craig Pickering from Families Need Fathers said: “I welcome this important contribution to the debate on encouraging shared parenting by divorced or separated parents.
“Generally speaking, children do better in every way if they have two parents in their lives, and the children of separated families are no exception.”
Ends.
Morrish Solicitors adhere to the Code of Practice of Resolution, which promotes a non-confrontational approach to family problems. Our members encourage solutions that consider the needs of the whole family – and in particular the best interests of children.
From Frances Gibb, Legal Editor, The Times Online edition 7 June 2010.
The wife of the celebrity chef Marco Pierre White knows all about the heat of the kitchen. But next week she enters the equally torrid forum of the divorce courts — and alone, without lawyers.
Mati White is the latest victim of the credit crunch in divorce, where banks are turning away spouses seeking funds for battles with estranged husbands. She estimates that she has run up legal bills of £750,000 since she and her husband separated and is unable to borrow more to instruct lawyers.
Her husband won a landmark ruling that he could sue her former solicitors, Withers, over her interception and seizure of his personal papers, taken because she believed that he was concealing the extent of his assets.
“I am in an absolutely impossible situation,” she told The Times. “I am in rented accommodation, I don’t own anything, and I can’t afford lawyers. I can’t do a Heather Mills because I am not clever enough. I shall just have to stand there and say: I want something that is fair.”
Mrs White, 47, who is Spanish-born, said that she had had to sell her engagement ring to pay legal fees. “I never wanted half his assets. I asked for half the value of our marital home in Holland Park, which then was valued at £2.2 million, and maintenance for our three children.”
The case highlights twin difficulties for divorcing spouses: securing funding and obtaining information. The Court of Appeal ruled last year that Mr White could sue her solicitors over his wife’s detective work because on their advice she had obtained and intercepted documents.
Spouses are allowed to take documents lying around and even scour dustbins but not to remove them by force, interception or to take hard disks.
Guidelines are expected in a case in which the property tycoons Robert and Vincent Tchenguiz are claiming that they were entitled to seize 20,000 documents from the computer of Vivian Imerman, the former Del Monte foods owner, to help their sister Lisa in her £100 million divorce from him.
Hearings involving unrepresented parties present problems for judges — and not only will Mrs White be without lawyers, but Mr White has also chosen to be unrepresented.
Frances Hughes, of the lawyers Hughes Carruthers, said: “There is a definite rise in the number of litigants in person, but a complex case with both sides acting for themselves is rare and would be very difficult for the judge.”
Mr White, whose restaurants and businesses have been estimated to be worth £50 million, is understood to have offered to settle, but without success because Mrs White does not want complex tax arrangements and trust funds, saying: “I just want everything in the open.”
Ends
Matrimonial and family problems, whatever their nature, can have an upsetting effect on the whole family, both financially and emotionally. The breakdown of a marriage is one of the most traumatic events a person can suffer. Emotions run high at these times, and this can affect a person’s judgement. Practical, professional advice is needed and will ensure a considerable saving both emotionally and financially.
At Morrish Solicitors, our experienced, specialist solicitors can guide you through the process and advice you on all of the options available to you at each stage. We provide sensitive advice and work effectively to achieve the most practical solution for you. We encourage solutions that consider the needs of the whole family, and in particular the best interests of children. We inform our clients of other available options including counselling, mediation, family therapy, collaborative law and round table proceedings. However, sometimes Court proceedings are unavoidable. We can advise and assist you throughout the Court process and ensure you are properly represented at all stages.
For further information, please contact Bernard White, Noelle Heath or Adele Waring on 0113-2450733.
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