Faking it

Acts of revenge on cheating spouses always make for easy headlines. Farmers who dump truck loads of manure on their ex-wife’s front lawn, wives who cut one sleeve off every shirt in their husband’s wardrobe, you know the sort of thing.

Nowadays with social media omnipresent, these acts of revenge can get a lot of air time, and even “go viral”. So we have been amused by the apparent story of a separated German man “Martin” who posted a video on You Tube showing him sawing his possessions in half and then putting them for sale on eBay. You can watch the video here It is titled “For Laura” (presumably the ex-wife), and the opening words translate as: “Thank you for 12 ‘beautiful’ years Laura !!!!! You’ve really earned half, greetings to my successor.” The man also appeared to put up 16 items for sale on eBay, including half of a bed, car, computer, sofa, teddy and a slice of an iPhone.

Rather delightfully, the video was taken at face value by many news channels, including Fox News in the USA and others in Iran and Russia, and reported as genuine. It has received over 6 million views on YouTube. However it turned out to be a publicity stunt by Deutsche Anwaltauskunft, which is an information portal for the German Bar Association. They confessed, saying “The idea behind it was to humorously point to a problem that is not only relevant in Germany: too few married couples take precautions for the case of a possible separation – for example with a marriage contract. The event of divorce then often ends in bitter fights under which not only cars and furniture suffer but especially the affected couples and their children.”

This is quite an unusual way to draw attention to the need to consider a pre-nuptial agreement or other ways of protecting your assets. Apparently the bisected items do exist and are really being auctioned on eBay with the proceeds to be donated to charity.

Advertising the services of family lawyers is always a delicate balance. You may recall the widespread distaste which greeted a short-lived advertising campaign in London a few years ago which featured posters aimed at husbands, bearing the slogan “ditch the bitch” and the equivalent for the ladies: “all men are b*stards”.

An American firm recently put some adverts on YouTube which appear to be wedding and honeymoon videos, but then when you press “play” it simply says “this video has been removed by the user. Divorce happens.” followed by the name of the law firm.

Back over here, there is law firm in Birmingham that was slammed by a councillor in the local press for advertising their family law services with the innocuous slogan: “Unhappy with your partner? Speak to us in confidence and discuss your options”. Proving that family law remains an emotive issue, the councillor claimed that the “family is now under attack from some members of the legal profession …..We must ask whether touting for business amongst the saddest part of life is encouraging people to end their relationships and do long term damage to children.”

This is an example of how emotive the subject of divorce is: it seems to us that the advert was hardly promoting divorce or attacking the family, it simply said options could be discussed in confidence. One might imagine the same phrase to be used by a therapist. As one could hardly say advertising conveyancing services encourages people to move house, simply advertising family law services is not encouraging divorce. It is important that people going through relationship difficulties are aware that there are knowledgeable professionals who can help them. As Resolution family lawyers, we pride ourselves on assisting human beings to make the right decisions for themselves and their families, and wouldn’t dream of adding further pressure onto an already stressful situation. As for adverts in general, it would be offensive to suggest that anyone’s decision to end a relationship would be swayed by seeing an advertisement from a lawyer.

One thing that some divorce lawyers don’t realise is that people going through the painful process of separation may well find adverts from divorce lawyers, particularly the more hard-hitting or apparently humorous ones, to be tasteless. The German Bar Association’s advertisement is clever in that it targets people who have successfully moved on from a divorce, or who have not experienced one personally, to think about making plans for a marriage contract should they ever marry. They are not seeking specifically to target those involved in or contemplating a divorce at the present moment. Those who are, who see the advert, may not be so amused.

If you are considering sawing your possessions in half, please consider making an appointment to see Gail, Simon, Sue, Adam or Tricia to discuss it (or any other aspect of family law) beforehand. We are on 01223 443333.

Sipping terrestrial champagne

No one likes to talk about death, and planning for our own is something many of us put off, or cannot bear to think about at all. Even writing a Will and thinking about to whom we should pass on our possessions can be really hard for some people. But if you turn it around and instead think about how many years of life you are likely still to have left to enjoy, there are some important things to consider.

Pension provision and financial security in later years is one of those things, and knowing approximately for how many years after retirement you are likely to survive is a useful bit of information.

So with that in mind, the Office for National Statistics has developed and just launched a life expectancy calculator. In addition to showing life expectancy, it also calculates a person’s chance of living to 100 (and thus receiving their telegram from the Queen). The tool was developed in conjunction with the Treasury and the Cabinet Office as part of a project to support pension reform, but you can have a go at calculating how much time you have left here. Results come with a graph and tell you, cheerfully, that you have a 1 in 4 chance of reaching the grand old age of 96, or whatever is appropriate based on your current age and gender (no health questions). There are links to other pages on the Government’s website which help with planning how long your money needs to last.   The results assume, of course, that there are no intervening accidents or life-shortening illnesses.

Many of you will know that life expectancy is one of those things which can feature in calculations that the family courts make when arriving at a financial settlement for former couples going through divorce and the process of separating their assets. For example, if the court is calculating an appropriate lump sum to represent a maintenance payment that might otherwise be monthly for the rest of the recipient’s life, they use actuarial tables based on the recipient’s life expectancy to work out the appropriate sum.

Occasionally, however, the issue of a reduced life expectancy presents itself in family proceedings. These are always difficult cases which need to be handled sensitively. To what extent should the fact that one spouse is not expected to live very long be taken into account in arriving at a financial settlement on divorce?

This point was discussed in the recent case of M v M. The husband and wife involved were married in 1986, when the wife was 29 and the husband 42. They separated in 2008 after 22 years of marriage, by which time their daughter was independent. When they separated, they sold their family home and divided the proceeds approximately equally. The divorce itself commenced five years later, and at that point the wife issued her application to court for a financial order in respect of the divorce.

Sadly, the wife was diagnosed with ovarian cancer in January 2014, a year before the final hearing which was in January this year. The judge was HHJ Stephen Wildblood QC, who featured in last week’s blog for his skillful and robust handling of the Minnock case.

He adopted a similar no-nonsense approach to this case.

The medical evidence put the wife’s life expectancy as somewhere between 2 ½ and 3 ½ years based on median survival rates for ovarian cancer, and over ten years on the basis that a third of patients survive a decade or more after diagnosis. The judge was largely dismissive of this saying, “I could not possibly approach this case on the basis that Mrs M would sip her last glass of terrestrial champagne on a certain date……her life expectancy cannot be treated as fixed by findings based on a balance of actuarial or medical probability. No sensible person would run their personal finances on that basis. Findings about life expectancy based on median figures would be even more unsatisfactory and unjust; that approach could result very significantly to Mrs M’s detriment within these proceedings.

At the time of the hearing the wife was 58. She asked the court to ignore her entitlement to a state pension at age 66 as she argued she may not be alive then. The judge refused to accept that contention, saying it would be wrong to airbrush future income entitlement from the calculations based simply on apparent life expectancies. The judge decided that the former couples’ pensions should be equalised with an adjustment – but the adjustment would take account of pre-marital acquisition of wealth on the husband’s part, rather than of the wife’s apparent reduced life expectancy.

In this case, the prognosis of the wife did not have any major bearing on how the court dealt with the finances. Although not explicitly stated, it seems the approach is that where a spouse has built up an entitlement to share in the matrimonial pot of wealth over a long marriage where both have contributed, there is no automatic reason why that entitlement should be curtailed by the recent unhappy news of serious illness.

If you would like to make an appointment to speak to Gail, Simon, Sue, Adam or Tricia about the issues raised above, or any other aspect of family law, please call 01223 443333.

The Minnock Case

It is not often that family law hits the national news headlines, but in the last couple of weeks there has been considerable press coverage of the story of the so-called “runaway mother” Rebecca Minnock, who went into hiding with her son Ethan, after the Family Court in Bristol ordered that Ethan should live with his father, Roger Williams.

This has been an interesting example of the press and the family courts working together to publicise the case and to help track down the mother and missing boy; according to the court, it has also been a study in how someone who is disillusioned by the court process can manipulate the media to their perceived advantage, only to have it backfire.

At the centre of this case is a little boy, Ethan, aged 3, who is clearly much loved by both of his parents. They have been involved in litigation about his living arrangements for 2 years. When Roger and Rebecca separated in February 2013, Ethan remained with his mother, and his father made an application to the court to have contact with him. The mother made various allegations about the father’s behaviour with regards to Ethan. However in April 2014, these allegations were all rejected by the court as untrue, and the court ordered that Ethan and his father should see each other.

The matter was back in court in February 2015 as Rebecca had made more allegations. Again these were rejected, and were found to have been fabricated by the mother specifically to frustrate contact between father and son. At that hearing it was ordered that Ethan spend four nights a week with his father and three nights a week with his mother. A social worker became involved, and was asked to report back to the court. A psychiatrist was appointed to report to the court, and a guardian appointed to represent Ethan’s best interests – this is something that only happens in the most difficult of children cases.

Both the social worker and the psychiatrist observed Ethan and his parents. Both, separately, formed the opinion that he was not emotionally safe with his mother, and should live primarily with his father; the court acted on these recommendations at a hearing on 27 May. The judge found that Ethan had been exposed to emotional harm by his mother, and also found that the mother had acted in breach of two court orders; one for her to attend the hearing and the second being the child arrangements order by which Ethan was to live with the father for four days of the week. She had made false allegations against the father and had obstructed his contact with Ethan.

That hearing resulted in an order that Ethan should live with his father, and have supervised contact with his mother. Changing residence of a child is one of the things a judge can do when contact with a parent is being obstructed by the other, but it is important to remember that at this point Ethan should already have been living with his father for more than half of the week following the earlier court order.

Rebecca was not in court to hear the decision, but when she learnt of it, she left her home with Ethan and went into hiding. This was a deliberate breach of the court’s order, and in the light of the opinions of the court-instructed social worker and psychiatrist about Ethan’s emotional wellbeing when with his mother, there was considerable concern about both Ethan and his mother. The court engaged an experienced Circuit Judge, HHJ Wildblood QC, and reporting restrictions were lifted to allow the press to report names and publish pictures to help locate Ethan.

The judge made Collection Orders. These are orders which empowers the tipstaff (a court officer who deals with enforcement) to remove the child from the person holding him and directs him to deliver the child into the care of a nominated person. These orders were served on various members of Rebecca’s family, including her mother, sister and brother, and her mother’s partner. All were required to either deliver the child to the police or the Tipstaff or to attend court to give any information they had about the child’s whereabouts.

They all claimed to know nothing. Rebecca’s mother and her partner were found to have lied to the police and to the court about their claimed lack of knowledge of Ethan’s whereabouts. Mobile phone records and CCTV footage undermined their protests of innocence and they were both jailed for contempt of court.

In the meantime, Rebecca granted interviews to the Sun and Daily Mail newspapers putting forward her side of the story. Videos were released showing that she and Ethan were well. Ethan’s father broadly maintained his silence. Public opinion seemed sympathetic to Rebecca – how could the family court do such a thing as to take a lovely little boy away from his loving mum?

In a judgment handed down on Friday 12 June, HHJ Wildblood QC sent a very clear message to Rebecca, and to the public who had been following this case. In essence he said that the court fully understands the stresses of litigation on parties and families. However an order was made, with the benefit of a lot of high quality professional advice. If the mother was unhappy with the court order changing residence, her remedy was an appeal, not abducting her own child. The court cannot ignore her calculating and flagrant breach of its orders, but it remains in Ethan’s best interests to have a relationship with both his parents, and “everything possible will be done to ensure that Ethan has an effective relationship with both of his parents”.

Shortly after this judgment was released, Rebecca handed herself and Ethan in.

So what now? In the short term Ethan will live with his father (having been reunited with him on Friday) and the court will consider his longer-term future in private once the dust has settled. On Monday this week, the family were back in court before HHJ Wildblood QC who held part of the hearing in public, largely to condemn Rebecca’s and her family’s behaviour. He indicated that the mother is likely to be dealt with for her contempt of court.

Among other things, the judge said:

I would ask that there is as little speculation about what might or might not happen in relation to Ethan as possible. It would be thoroughly irresponsible and incorrect to suggest that the mother is now bound only to have indirect contact or supervised contact for very short periods of time. ‘Indirect contact’ is a phrase that means contact which does not involve face to face meetings (thus indirect contact might mean contact by letter, telephone, Skype, etc). The arrangements for Ethan to see each of his parents will be governed by his paramount welfare (section One of Children Act 1989) and no one, myself included, can predict where that welfare might lie until the case has been heard fully and properly. I do make a request please that speculation, such as some of that which has occurred over the weekend, should be as limited as possible. I have already said, but repeat, that I will be doing everything possible to ensure that this little boy has an effective relationship with both of his parents.

We hope that this little boy is able to have a stable, loving upbringing involving safe time with both his parents throughout his childhood, away from the glare of publicity. We also hope that the family of this child, and the media and public at large, are able to trust the court to make the right decisions about Ethan’s welfare in the coming weeks and months, and beyond if necessary.

If you’d like to read the recent court judgments in this case, they are published here. They, unlike most of the media coverage, give a balanced and nuanced view of this very difficult case, and show the family court’s skill in managing the unfortunate situation.

As always, if you would like to talk through any of the issues raised above, we are on 01223 443333. Do call to make an appointment to see Sue, Simon, Tricia, Gail or Adam.

Rogues’ gallery?

This week the Supreme Court has been getting its teeth into some family law. Seven judges have spent the last few days hearing the appeals in the cases of Sharland v Sharland and Gohil v Gohil. Both cases feature issues which arise from non-disclosure of financial information in divorce and financial remedy cases.

The appeals have been heard by Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed and Lord Hodge. Not all are family law specialists, so it will be interesting to see how they deal with these two cases, which have been joined together for hearing before the country’s highest Court.

So here is a brief bit about both the cases, and the issues the seven justices will be wrestling with having heard argument from counsel for all parties over the last three days.

The Sharland case stems from an agreement which the couple (Alison and Charles Sharland) had reached, which turned out to be based on inaccurate information. Mr Sharland founded, and retains a large shareholding in, a company called AppSense which provides remote access software to businesses across the globe. The settlement had been reached based on the assumption that AppSense was worth between £31.5m and £47m, with Mr Sharland’s shares being worth £7million. He told the court that he had no immediate plans to float the company. However, shortly after agreement was reached, it emerged that the company was worth significantly more (press reports said up to £600m) and that, contrary to Mr Sharland’s evidence during the hearing, an initial public offering was being prepared.

On discovering this, Mrs Sharland sought to set aside the agreement as neither she nor the court had been aware of these facts when the agreement was reached and approved. In a ruling which many family lawyers found odd (to say the least), the judge refused to set aside the agreement as he said even had the true picture been known, the court would not have made a substantially different order from the agreement that the parties reached. Mrs Sharland appealed this decision to the Court of Appeal, by which point it was clear that AppSense was no longer about to be floated. Two of the three judges upheld the decision not to set aside the order, saying although Mr Sharland’s non-disclosure had been deliberate and dishonest, it was not “material” to the outcome of the case because Mrs Sharland would have received a similar amount to that agreed upon even if the truth had been known.

The Supreme Court will consider: (1) the impact of fraud on an agreement reached to settle financial remedy proceedings, and on a consent order made following that agreement, (2) whether the family law position differs from other civil proceedings, (3) what remedies are available when fraud has been discovered, (4) whether the court’s refusal to rescind the order following discovery of fraud impacts upon the right to a fair trial.

In the Gohil case, Varsha Gohil had grave misgivings about her husband Bhadresh’s disclosure throughout their financial remedy case, and although they reached agreement in 2004, she recorded on the court order her belief that he had not given full and frank disclosure but confirmed she had compromised her claims to achieve finality. Six years after they reached agreement, Mr Gohil was found at a Crown Court trial to have been involved in fraud and money laundering amounting to over $37 million. Following this, Mrs Gohil applied to have the order set aside on the grounds of alleged serious non-disclosure, fraud and misrepresentation. In the High Court, the judge gave significant weight to the evidence used in the criminal trial, and it was decided that the husband had failed to give full disclosure in the family proceedings, (an unsurprising result!) and the judge set aside the clean break part of the order and ordered a rehearing.

Mr Gohil appealed and although he was described as an “out and out rogue”, the Court of Appeal decided that the High Court could not simply set aside the consent order by finding that there had been material non-disclosure. Rather there should have been a full fact finding hearing regarding the non-disclosure, and furthermore the evidence from the criminal trial (on which the wife relied) was not admissible in family proceedings. So Mr Gohil walked away from the Court of Appeal a happy man.

Mrs Gohil appealed to the Supreme Court, which will be determining the correct approach to an application to set aside a final order in financial remedy proceedings on the basis that there has been material non-disclosure by the other party.

Family lawyers are hoping for some guidance and certainty, and a tough approach to dealing with those who mislead the court, and with it their former spouses. The result will not be known immediately, but we are keeping our fingers crossed for some common sense and straight talking from the Supreme Court. We will, of course, bring you the wisdom and decision of the justices when it is handed down.

In the meantime, if you have any questions about disclosure or any other aspects of family law, you can make an appointment with Gail, Simon, Adam, Sue or Tricia by calling 01223 443333.