Taking silk – what’s a QC?

Last week we heard that twelve family lawyers had “taken silk” or in other parlance been appointed as Queen’s Counsel, or QC for short. So we thought, as a little side-track from our normal topic, a brief look at what a QC really is, and this business about silk, might be instructive.

We will try to keep the history lesson short!

Queen’s Counsel (or King’s Counsel during the reign of a male monarch) are senior barristers – or, unusually, senior solicitors who are specially qualified to do advocacy in the higher courts. The Queen’s (or King’s) Counsel superseded the Medieval lawyers known as Serjeants at Law, who were order of senior barristers established by the twelfth century king, Henry II (he was the one who had a spot of bother with Thomas Beckett, and who was father of Richard the Lionheart and bad king John). The first Queen’s Counsel was created during the reign of Elizabeth I, but they did not rise to prominence as the most prestigious barrister rank until the nineteenth century.

Recent years saw debate over whether the title should be retained, and it was suggested that the rank might be abolished. However the appointment system was reformed (the much-criticised “secret soundings” of judges were abolished) and the rank of QC retained. These days appointments are made once a year by a nine-member panel, chaired by a lay person, which includes two barristers, two solicitors, a retired judge, and three non-lawyers. In formal terms the appointment is a royal one, but in name only.

So what about silk, and why do we refer to QCs as having taken silk, or just as silks? Well, it is all to do with court dress (which is not always worn – just to confuse matters). When in court dress, a junior barrister wears an open sleeved black gown over a dark suit. A QC will wear a black court coat and waistcoat, or a long-sleeved waistcoat with no court coat, which is styled like 18th-century court dress. Importantly, their gown should (in theory) be made of silk (although some wear other materials these days) and has a flap collar and long closed sleeves (the arm opening is half-way up the sleeve). A barrister in court dress is described as “robed”, one in normal business attire as “unrobed.”

In family cases court dress is rarely worn. Business suits are the norm for barristers, apart from in contested divorce or nullity cases, and hearings before the Court of Appeal or Supreme Court, where court dress is normally worn. You will be far more likely to find formal court dress in the criminal courts.

So, when might you actually want to instruct a QC in your case? These days the award is made based on a proven track record of excellency in advocacy before the courts (both written and oral advocacy). So if your case is very complex you may want the security of knowing your barrister is outstanding in their profession. Many barristers who have been at the bar (i.e. practising) for many years are truly excellent advocates without being QCs, and if you do need counsel to represent you in court, then your solicitor will be able to advise on the most appropriate person to appoint.

If a QC is appointed, you can expect their fees to be considerably higher than non-QCs who are known as junior counsel, even though many of them are far from junior in age or experience!

At this level, many barristers are specialists, either in finance on separation and divorce, or on children cases. Some retain a twin-track specialism and work on both children and finance cases. Some specialise in public law cases, i.e. taking children into care and placing them for adoption. Legal Aid is still available for some public law cases, and in exceptionally complex care cases, it is possible for a QC to be funded by the Legal Aid scheme.

If there is anything else you would like to know about Queen’s Counsel, barristers, or family law generally, then please get in touch with us on 01223 443333.

Maintenance: terms and conditions

We often talk about spousal maintenance, perhaps more correctly we should talk about former-spousal maintenance or ex-spousal maintenance. But it is not often that lawyers stop to ask themselves why spousal maintenance is paid at all. Why, after the dissolution of a marriage, does the law permit, and indeed order, one spouse financially to maintain the other? Well, it is an effect of the common law duty imposed upon spouses to support each other whilst the marriage subsists.

That duty continues after separation as a result of statute. Even before judicial divorce first became law in this country (in 1857), in the era when a divorce could only be obtained by a private Act of Parliament, the terms of such an Act would invariably require that the husband was to make some moderate financial provision for his former wife. Subsequent matrimonial legislation has established the principle of maintenance payments after divorce.

These days maintenance can be payable for a fixed term (which may be extendable or non-extendable), or for life, or even extending beyond the death of the payer if that maintenance has been secured. You can also have a nominal order, which is where nothing substantive is paid, but there is no clean break, leaving the door open for claims to be made later on.

There is no automatic entitlement to spousal maintenance on divorce, but legislation obliges the court to consider whether it is possible to achieve a clean break between the parties, or whether the needs of one party (usually the income-poorer one, often the one who has the children with them more of the time) require that maintenance should be paid to top up income from other sources to meet needs.

Spousal maintenance is dealt with differently in different countries. In places like Scotland, Sweden and New Zealand legislation provides that the obligation to maintain a spouse should not be imposed save for a short period. In Scotland it is three years. We wrote last week about Baroness Deech’s Bill which would create a similar limit in England and Wales if it were to be passed (which is unlikely, particularly bearing in mind the upcoming general election).

Our current legislation requires that maintenance ends as soon as it is just and reasonable, and a term order (i.e. one of fixed duration) should be considered by the court, unless the receiving party would be unable to adjust without undue hardship to the ending of the payments.

The amount of maintenance paid is calculated based on financial needs. Recent cases have also discussed needs being generated by the fact of the marriage (or the slightly unattractive phrase “relationship generated disadvantage”). Assuming the choices made by the spouses during their marriage give rise to quantifiable financial needs the next question arising is for how long should it be paid?

There is no hard and fast answer, and the general lack of clarity around this is one of the things being addressed by the Matrimonial Needs Working Group which was established following a recommendation by the Law Commission that the law relating to financial needs on divorce be clarified. The group’s report is due soon, and we will look at it in this blog when it is out.

As for how long maintenance should be paid, the Law Commission wrote that the objective of maintenance orders is to enable a transition to independence, to the extent that it is reasonable bearing in mind the length of the marriage, standard of living, the need to house the parties, and the continued shared responsibilities relating to children.

In a recent case one of our more prominent family judges, Mr Justice Mostyn, has decided to grab the general vagueness around the subject of maintenance – how much and for how long and provide some guiding principles. His words are not law, and because his decision was in the High Court rather than the Court of Appeal or the Supreme Court, it is not binding on other High Court cases. However, his pulling together of what are considered the key principles is quite useful. In summary he says:

  • Maintenance should be paid if choices the couple made when married have generated real needs. The length of the marriage and presence of children are key factors – a short and childless marriage may not therefore give rise to any maintenance.
  • Maintenance should only be calculated by reference to needs, apart from in the most exceptional cases. The standard of living during the marriage is relevant but not decisive when assessing quantum of maintenance.
  • Courts must consider an end date (a term) for the maintenance, and helping a party make the transition to financial independence. It is acceptable for there to be a degree of hardship when making that transition.
  • A term which can be extended if necessary is better than a joint lives (i.e. until one party dies) order.
  • If a court has to decide between imposing a term which can be extended, and one which cannot, its decision should be in favour of the economically weaker party (i.e. extendable terms).

What he seems to be saying here is that he wants to see the back of never ending (joint lives) orders, and rather giving more certainty through fixed term maintenance orders allowing the parties time to adjust to their new circumstances and become financially independent of each other. He is not a supporter of Baroness Deech’s three year limit, but does seem to want to inject his own brand of clarity into family law.

We will wait to see what the working group has to say on the matter. In the meantime, if you have any maintenance questions, or any other family law matters you would like to discuss, you can reach us on 01223 443333 to make an appointment.

Tough love: should we limit maintenance after divorce?

Happy New Year, and welcome back to our blog. We hope you and your families had a restful and joyful festive period.

This week saw the annual press story about “D Day” or “Divorce Day” which is (apparently) the first working Monday after the New Year celebrations. So that was Monday this week (5th January 15) when according to the press, lawyers were inundated with enquiries from prospective clients. It is also the time when Relate and other relationship counsellors say they see an increase in new clients, as people try to work on saving their relationship after a difficult festive period.

On the subject of divorce, Baroness Deech (an independent peer in the House of Lords, and outgoing chair of the Bar Standards Board) has been in the press again. This time she has been telling the Financial Times that divorce ought to be tougher on women – or at least that is how it has been reported. We thought we’d take a closer look.

At present the Baroness is endeavouring to steer a bill through the Lords which would inject greater certainty into family law by making prenuptial and postnuptial agreements binding, under certain conditions. You may recall that the Law Commission has also recommended recognition of marital agreements. The other main part of her bill (which we wrote about it here) deals with sorting out finances on divorce where there has been no valid prior agreement. The proposals stipulate that all the property couples acquire after they are married would be divided equally in the event of a divorce, but each would keep the assets they owned beforehand.

Baroness Deech believes that our current family justice system sends out a bad message to young women. As she put it in her interview with the FT: “Never mind about A-levels or a degree or taking the Bar course — come out and find a footballer.” She goes on to state that family law and the way finances are dealt with on divorce, “says once you are married you need never go out to work, [that] you are automatically entitled to everything you might need even if that marriage breaks down and it’s your fault”.   Her comments have been reported against the backdrop of the country’s biggest recorded divorce case, where recently Sir Christopher Hohn was ordered to pay his former wife £337m from the family fortune which totalled £869m. That’s an award of around 39% to the wife, with the husband retaining around 61% to reflect his ‘financial genius’ in building up their wealth from scratch.

Ironically, had Baroness Deech’s formula of equal division of post-marriage assets been applied, Mrs Copper-Hohn would have been better off by a further £97.5m as the wealth was generally acquired after their marriage.

What of the Baroness’ attempt to inject certainty into family justice?

The headline clauses are the removal of the wide discretion judges currently have to construct settlements, and its replacement with a provision that matrimonial property is to be shared equally between the parties, subject to a few exceptions (such as a prenuptial agreement, the needs of the children or bad conduct in relation to family assets). The result would be to stop significant capital payouts to wives who marry rich men (including footballers) for short periods of time. Do we really need to protect men from apparently predatory women in this way – or is this approach in fact a form of enlightened equality? Would any such changes simply move the point of argument to “the needs of the children”, and therefore lead to more contests over which parent the children should live with? What do you think?

As we mentioned, the Bill would also make pre- and post-nuptial agreements binding, subject to safeguards, and would limit spousal maintenance to three years, subject to certain exceptions.

Although the limited maintenance provision is similar to the law that operates in Scotland, it has the potential to cause real hardship. It remains the case that women’s careers are often adversely affected by having a family, and by decisions taken jointly when children are born. When mothers return to work, many do so part-time, which obviously affects their income and earning potential in the short-to-medium term at least, and also the ability to make pension provision for the long term.   It is still less common for men to take time out in the same way, but it is possible that men who do reduce their hours in order to spend time raising their children are also disadvantaged in career progression subsequently. Should a woman, or indeed a man, with a young family be automatically restricted to just three years of maintenance from someone whose career has been less affected by family decisions? We aren’t convinced.

It is not about, as the Baroness says, never having to work after your vows, and getting everything you’ll ever need when you divorce. The current system of judicial discretion is focussed on needs – primarily those of the children, and then those of the adults. For the vast majority of people who are not awash with money and for whom financing two homes after separation is often very tricky, the more creative options available to judges, and also to families who use alternatives to court, can be a benefit. Whilst certainty is good in many respects we are not sure that the strictures proposed by the Baroness would guarantee the fairness she laudably aspires to with her Bill.

As ever, if you would like to make an appointment to speak to Tricia, Simon, Gail, Adam or Sue, just give us a call on 01223 443333.

Review of the year in family law

As this will be our last blog of the year – our Yule Blog (sorry!) – we thought we’d look back over the highs and lows and themes in family law from the past twelve months. In some ways it has been a momentous year for family law, and in others we have seen a steady development of themes and practice.

So starting with a momentous moment, the Marriage (Same Sex Couples) Act came into force on 13 March giving equality in the marriage arena to all couples. As well as domestic couples, the legislation provides for English law to recognise same sex marriages validly celebrated overseas. Glitches in the legislation that prevented the conversion of civil partnerships into marriage were eventually ironed out this month, after regulations were approved by Parliament removing the need for a civil partnership to be dissolved before a marriage could be celebrated. Since 10 December, couples have been able to convert a civil partnership into a marriage and their marriage certificate will show the marriage should be treated as existing from the date of the original civil partnership.

We also saw the switch to the Single Family Court in April. This was part of the streamlining and modernising of family justice. The new court brings together the functions of the Magistrates, County and High Courts under one umbrella organisation, and now all locations of the family court can deal with all aspects of family law, with a few limited exceptions which have been reserved to the High Court (mainly to do with mentally incapacitated adults and international child related disputes).

The same month saw new legislation, the Children and Families Act, hit the statute books. This brought in new terminology: out with residence and contact and in with child arrangements orders. We also saw the introduction of the presumption that it is in the best interests of the children of separated parents to have continuing involvement of both parents in their lives. The Act also made it a requirement to attend a family Mediation, Information and Assessment Meeting (MIAM) to find out about and consider mediation before applying for certain types of court order.

Speaking of mediation, there has been growing encouragement of it, along with other forms of alternative dispute resolution from all quarters. However, take-up remains stubbornly low. So the President of the Family Division and other judges have done all they can to encourage couples to use mediation, including imposing costs penalties for unreasonable stances in relation to mediation and adjourning cases to allow for renewed attempts at settling the case through mediation. Agreements reached through arbitration, collaborative law or mediation should now be approved by the court automatically unless something is clearly awry. In addition to the judiciary, the Ministry of Justice recently announced that where one party to a family dispute is legally aided, the government will now fund both parties’ attendance at one session of mediation at a legal aid provider.

This year has seen concerted attempts from the Government and the courts to steer couples towards the quicker, cheaper, and more dignified approaches of alternative dispute resolution. Given the problems under which the family court is operating, caused in no small part by the removal of legal aid for family law, and the benefits to the family concerned of resolving separation outside the court system, we applaud this trend, but note that the removal of legal aid from family court proceedings has effectively led to many parents – and of course their children – being denied access to justice, or justice itself.

We have also seen the courts toughening up enforcing rules about the paperwork presented to them and taking a stricter approach with those who flout orders for disclosure or disobey court orders (Michael Prest’s sentence and Libor Krejci’s being just two examples this year)

So we have seen the courts getting tough on miscreants and doing all they can to keep couples away from their doors, whilst they struggle on with the ever increasing numbers of self-represented litigants. The President is leading the increasing move to make the courts as transparent as possible. We’ve also seen pre-nuptial agreements being upheld by the courts which also goes along with the general trend of courts encouraging and recognising autonomy for couples in sorting out their own financial situations.

Looking forward to 2015, the Cohabitation Bill had its second reading in the Lords recently and will proceed to committee stage next year. The Supreme Court recently heard the appeal in the case of Vince v Wyatt where the wife was seeking a large lump sum many years after divorcing her wind-farm entrepreneur husband). The result should be out early in 2015 and will make interesting reading. Later in the year, the Supreme Court will be getting its teeth into the combined appeals in Sharland and Gohill – cases where the effect of non-disclosure in financial proceedings are in issue. That will be an interesting judgment to look out for.

It’s been a special year for us at CFLP: the brilliant Tricia Ashton is now part of our team, our partners are again rated as leading East Anglian lawyers in the Legal 500, and we’re still top of the tree in the Cambridge family law rankings in the respected Chambers & Partners directory, which uses client feedback to determine how well firms are doing. We’ve got some interesting plans for next year too, so watch this space.

We hope that you all have a peaceful Christmas and New Year. Please note that we’ll be closed to give our hardworking staff a Christmas break from 5pm on Tuesday 23 December until 9am on Friday 2 January, and we’ll also be taking a break from blogging during the festivities. Other than during that period, if you would like to make an appointment to speak to Tricia, Simon, Gail, Adam or Sue, just give us a call on 01223 443333.