Match Point



In the last two days we have seen examples of outcomes and contrasting ways to reach an outcome. Depending upon your standpoint, the word humiliation may even be applied.

The Eurozone countries reached agreement over the Greek debt crisis after 17 hours of negotiations, demonstrating just how difficult reaching a consensus can be. Save in such extreme circumstances, I doubt if anyone would normally recommend overnight discussions which smack of locking the door and refusing to let anyone out until a workable solution is reached. Hanging over the negotiations was the apparent threat to force Greece out of the Eurozone, although it too had recently implied that it could leave without a fair deal.

In family proceedings face to face talks within collaborationare probably preferable, especially as in the latter case the parties agree that they will look to find answers to the issues they confront without litigation and are supported in this aim by everyone working together rather than in opposing camps. Mediation too allows much freer discussions. Any form of negotiating is, however, always open to the prospect of one party rail-roading the whole procedure with the threat of court action. Nobody should ever sign up to an agreement simply because they feel overly pressurised, negotiation-weary or frightened, without first having time to reflect on and rationalise the outcome proposed.


Otherwise and in the absence of a solution, court proceedings are inevitable. One only has to look at the Wimbledon final on Sunday between Roger Federer and Novak Djokovic, to understand how a court dispute resolves matters but not necessarily to both parties’ satisfaction. It is often said that in family proceedings there are no winners only losers, but the one thing that is certain is that there cannot, as that match on Centre Court surely demonstrated, be two winners.


Grexit


Every family lawyer across the land acts for at least one client who is arguing over money.

Once upon a time, one couple, whom I shall refer to simply as Angela and Alexis, were joined in union back in 1981, over thirty years ago. On reflection it was probably not a match made in heaven, she with her Germanic work ethic and values and he with a potentially more laid back air about him. However the relationship has persisted and to the point where, after twenty years, they even agreed to a joint bank account, although it could be argued that it was always Angela who has controlled the purse strings. 

In recent years, hit by the global economic crisis, Alexis has spent half his time without employment and although Angela has allowed him to draw from the account it has been on the basis that he drastically curtails his expenditure and repays the sums taken with interest. Sadly it has become harder for him to make the payments into the account which Angela has demanded and communication has become difficult as a result, each making impossible demands on the other so far as their monetary arrangements are concerned and blackmail has even been alleged. 

Neighbours have sought to assist in bartering an agreement, but when Alexis decided to consult and involve his relatives concerning the terms proposed by Angela, she has taken umbrage and declared that there can be no deal. Uncle Jean-Claude has today asked them to compromise but they seem to be becoming more entrenched.

Who knows how it will end? Will there be reconciliation or will Alexis be forced to open his own bank account and will he be able to borrow sufficient funds to meet his financial commitments in the meantime?

Regardless of how Angela and Alexis endeavour to resolve their issues, I would predict more tears and tension in the short term; the embroilment of others around them; finally a solution, the terms of which are probably unattractive to both at this juncture but better than the stalemate that they are now in; the innate gift of self-preservation to see them through the immediate aftermath; ultimately, in due course, time as the great healer.




Magna Carta



It is 800 years this month since the sealing of the Magna Carta. The charter was meant to bring peace between King John and the barons but has also been described as the closest thing our country has ever had to a Constitution as well as the forerunner to subsequent Declarations of Human Rights. I was in Lincoln a few weeks ago where one of only 4 remaining copies of the original Magna Carta is preserved.

Of course we all know that it sought to enshrine the right of free men to justice and to protect them from punishment outside of the law or without a trial by their equals. I was not however aware that it also contained clauses which would have been of relevance to family lawyers (had such beings existed in the days of the Crusades). Indeed there is specific reference to guardians who are entrusted under the Charter with management of a ward’s land, and are compelled to restore that land to their ward “stocked with plough teams and such implements of husbandry as the season demands” when the heir comes of age.

Obviously there is no reference to divorce, but marriage is referred to. It is specifically stipulated that heirs may be given in marriage “but not to someone of a lower social standing” and their next of kin must first be informed. Moreover widows were not to be compelled to remarry, provided that they wished “to remain without a husband.” I imagine that may have been the closest a disenchanted woman could come to living without a man.

However and whilst the Magna Carta provided for a widow to receive her inheritance “at once and without trouble” it allowed her to remain in her deceased husband’s home for only forty days. Imagine, therefore, the meagre level of provision that might have been made in those days had divorce been an option, or what King John might have thought of the Matrimonial Causes Act and the financial provision now awarded by the courts applying a “yardstick of equality.” 



Media Melt-Down



There’s nothing better than a good divorce story (except perhaps a fracas over the lack of a hot dinner) to put the media into melt-down. Yesterday was one of those days when the Supreme Court confirmed that Kath Wyatt is properly entitled to pursue a claim for financial provision against her ex-husband, Dale Vince, notwithstanding the fact that they are reported to have separated and then divorced some 30 and 23 years ago respectively.

Despite speculation in the press, she is, of course, unlikely to receive a substantial share of the millions, all accumulated by Mr Vince since their separation and, therefore, falling outside of the definition of matrimonial assets.

The case, however, serves as a salutary reminder of the importance of dealing with financial issues at the time of a divorce. Even when matters are amicable and a couple agrees that there are to be no further claims by either of them against the other, a consent order dismissing those claims is needed. I have known clients who have baulked at the additional cost of obtaining such but, as I have inevitably explained, it is like paying for an insurance policy. In so many cases the risk can even lie in the potential cost and aggravation of a subsequent claim rather than the outcome; far better, therefore, to tie up all loose ends and close the door with a clean break order where possible.

Of course, and as a result of this case, there may be some who will now potentially hedge their bets and prefer to leave the door ajar, ready to be pushed open should their ex ever reap a fortune. Woe betides them, however, if lady luck turns and it is they rather than their former half who accumulates that pot of gold.


Inequality


I am sure that I have referred before in this blog to divorce leaving one party (usually the husband) feeling that has had to pay too much to the other party (usually the wife) and who in turn feels that she has received too little.

English divorce law is based on a concept of fairness and although this is measured against a yardstick of equality it does not automatically mean that assets are divided equally. In other words an unequal division can and invariably will be a fair outcome for the divorcing couple.

How so?

In many relationships the household may have depended on one partner (frequently but not always the husband) to work long hours to earn the money that has provided the home and other essentials for the family. The other partner (often the wife) may have given up a career, reduced her hours or prospects of advancement in order to care for children and the home, as well perhaps as moving from place to place in order to accompany the husband as he moves up the corporate ladder.
Post-divorce, rarely therefore will the dependent spouse have the earning capacity of the primary breadwinner. Unless assets are redistributed in unequal shares there may be unfairness.

The bread maker’s earnings provide a mortgage capacity beyond that of his spouse and whilst maintenance may help to bridge the gap, an unequal division of the financial pot is invariably required as well or instead. The main earner will potentially have accrued a pension, denied to his spouse, and there may need to be a redistribution of this, or a cash payment in lieu, in order to achieve a fair outcome. If however the couple are in a position where the primary earner has a final salary pension and the spouse has access only to an open-market money purchase scheme, to achieve equality of pension benefits again an unequal division or a payment representing more than half of the cash equivalent value of the scheme could be required.

Depending from which perspective one is examining the proposed terms of settlement is it any wonder that both can feel aggrieved?

Many the men who believe that they are being denied a fair return on the effort they have put in and many too the women who believe that they are being inadequately compensated for all that they have given up.

Regardless however of the extent to which the law seeks to redress the inequality that exists, only one thing is certain: as time moves on and circumstances intervene, the means of the former husband and wife are unlikely ever to be equal.

#inequality #BAD2014




In the News



Notwithstanding retirement, I do of course continue to take an interest in legal developments and cases especially those relating to divorce. In particular my attention was drawn last week to the newspaper reports on the hearing involving Mr and Mrs Hohn in what is being described as the UK’s wealthiest divorce case.

In the interests of transparency family cases have been opened up to enable attendance by accredited members of the Press. Their powers to report on the specific details of a case have, however, been very limited. When issuing a court application for a client I have, therefore, advised that, although proceedings are in private, the Press could be present but, reassuringly, that this is unlikely.

Save for those divorcees looking for a celebrity moment, many must have been extremely shocked by the High Court’s decision which has permitted everything to be reported except detailed financial information.  That said, one can probably assume that the Press will not, as a result, suddenly decide to attend every case where a financial order is sought; Mr and Mrs Hohn’s circumstances and wealth are somewhat exceptional.

For those who are genuinely concerned that their intimate details may be emblazoned across the Media are there any other options? Negotiation, arbitration, mediation and collaboration all spring to mind; differing levels of wealth or trust between parties making one process potentially more suitable than another. All, however, offer confidentiality, free from Press intrusion.


Perhaps a case like the Hohns’ is what has been required to encourage would-be litigants to examine all options with their solicitors, rather than embark on litigation other than as a last resort.


Bingo and Beer



The Chancellor thought he’d pulled a rabbit out of the hat yesterday with a budget aimed at pensioners and savers. Today commentators are expressing concern at the ability, if the proposals about pensions are followed through, to draw the whole of one’s pension as a lump sum. Indeed I’ve even read that this could be an ideal opportunity for people to thwart a spouse’s claim on pensions by drawing them in full and spending the proceeds. Rest assured English law already has procedures available to freeze assets.
Media space has also been directed at lampooning the Tory party and its ill-advised Chairman for promulgating an advert in which they seek to publicise the decision to reduce the tax levy on bingo and beer. “Cutting the bingo tax & beer duty to help hardworking people do more of the things they enjoy,” it said.
I have helped many clients who have attributed the breakdown of their marriage to a spouse who has been working so hard (be that in a business or at home looking after children) that they have felt neglected. Whilst they may have alleged that their spouse has been tied up in such work from morn to night, strangely I cannot recall it also being suggested that they went on to play bingo afterwards.
Beer, of course, is a different matter. Indeed there have been many clients too who have maintained that their spouse has worked hard and played hard calling in for a bevvy or two far too often on their way home from their arduous day. If, however, the Government really wanted to reward these people then perhaps it should have done the maths first and realised that the reduction in duty means that they will need to drink 100 pints before they save a pound!
It seems to me that not only was the advert patronising, but it was also untrue.