Allow people to divorce without blame
How can we make divorce easier and should we?
I have advised so many people who are surprised to learn that they can’t just call it quits on their marriage without having to name and shame their spouse. It is such an outdated notion that you have to cast blame or wait two years (and even then you need your spouses consent) before you can call time on your marriage. Sometimes it just stops working and it really should not be necessary to scratch around for allegations to satisfy a divorce petition.
At the moment you can only get divorced if you can prove either that your spouse has cheated on you, behaved so unreasonably that you should not have to live with them any more, deserted you (and that is a pretty tricky one to prove) or that you have been continuously separated for two years or five years. Even then if you rely on two-year’s separation you need your spouses consent and cooperation.  If you are in a civil partnership then you cannot even rely on adultery.
This is all pretty contradictory given that as a family lawyer I am expected to keep things as amicable as possible and not to make a bad situation worse. So as family lawyers we are supposed to try and keep things friendly. It really is quite difficult to do that when you are sending someone a divorce petition which accuses them of behaving so badly they and they alone are single-handedly responsible for the breakdown of the marriage!    Irreconcilable differences (with or without consent) sounds like a good alternative to me.
It really is about time that the government brought this outdated law into the 21st-century. This was supposed to have happen sometime ago but we have had  a   succession of governments which have been too cowardly to do anything about it. They are frightened that if they make it easier for you to get divorced there will be a stampede to the divorce courts which is clearly nonsense. No one goes through the expense and trauma of getting divorced without a very good reason. Marriage is an institution which most of us support and want to experience at least once in our lives. I do not think people will get divorced simply because divorce is easier and cheaper. However if the government is worried about supporting marriage perhaps they should consider that more people might get married if weddings were not so expensive and they might stay married for longer if we had more realistic expectations of our spouses.
Although it is good for your health I do not think marriage will ever become available on the NHS.   Making it easier for people to get divorced when the marriage has come to an end  could be good for marriage.

I saw this article in the London Metro yesterday (here published in the Daily Mail) Grandmother loses home.
Sadly this is a fairly common story and whenever I see a story like this there is always some comment from a family lawyer or judge complaining about the law and how it should be changed to bring it up-to-date. The complaint is always made that the current law does not protect cohabitees and that this is unfair and outdated. As a family law solicitor I am supposed to agree with this particularly if I want to be considered modern and forward thinking. However I do not.
I think we should have the choice whether to marry or not to marry. Marriage is a serious commitment which is more than simply a piece of paper. Marriage is a legal contract which includes a legal obligation to provide your spouse with financial support for the rest of their life (note that last bit it is important). That legal obligation does not end when you get divorced. It does not end because you have met somebody better, prettier, younger, stronger, faster or richer. It does not end because you have a decree absolute or even because you are dead. The financial obligations that you have for your spouse end when you obtain a financial court order which says – that is it you have fulfilled your legal obligations and the legal contract is at an end. This is commonly called a clean break.
In this case it is the wife who is protected not the girlfriend and her claims come first. Because Mr Martin did not divorce his wife her financial claims against him were never resolved and dismissed by the court, no clean break was achieved and she is entitled to claim against his estate now that he is deceased because he had a duty to support her for the rest of her life.
Marriage is an important and substantial legal commitment and the tradition and ritual of marriage helps us to understand that. I do not agree that we should be obliged to take on that commitment when we have chosen not to get married but live with someone instead. That is a free choice. We choose to live with our partner and not to marry (yes it is still a choice even if the other person will not marry you) and we should accept personal responsibility for this choice. Instead of changing the law we should change people’s understanding of the law and attitude to marriage.
Marriage should not be a dying institution it is important to our society and particularly to the emotional and financial security of our children. Instead of undermining marriage with new laws which support cohabitation we should ensure that people understand that if they choose NOT to get married there are consequences. The advantage of not getting married is that you choose not to take on all of the legal and financial commitments that go with it. Surely we are entitled to make this choice.

I have had a case recently involving a company which claims to offer legal services. I shall not name and shame the company here but with my client’s consent I will do so in another blog. However, I have been so appalled and enraged by the actions of this company that I think it is important to warn the public about using companies like this.
There are many of them out there. They cannot call themselves solicitors as to do so would be a criminal offence. They cannot represent you but they can call themselves law firms or legal companies and they can offer you legal advice and assistance. This is not the same as legal representation and it is perhaps difficult for members of the public to understand this. Only a solicitor or barrister (or properly qualified legal executive) can represent you in court proceedings. Anyone, including the person who delivers your pizza (no offence to pizza delivery people) can offer you legal advice and assistance.
In this particular case the company in question had offered legal advice and assistance to a mother who was involved in a case concerning her children and the local authority. We call this a care case. The company had access to legal documents including witness statements which name the children and which give details of the case including very private, confidential and personal details relating to the children and their mother. The company had no business retaining these documents after its involvement in the case had come to an end but it did. It also went on to send copies of these documents to other people who had no connection with this case at all (including me).
When I contacted the company and explained that these were confidential documents that they should disclose to anyone and indeed should not have kept copies of they ignored me. When I asked them to withdraw the documents they refuse to do so. Unfortunately, because this company is not regulated by the Solicitors Regulation Authority or any other legal body it isn’t accountable to any one and will probably get away with acting in this way.
What is the moral of this story? Family proceedings are very sensitive, very personal and very confidential. Please be careful who you trust with this information. Remember that one of the reasons solicitors are expensive is because we are heavily regulated and heavily insured. We are accountable for our actions and our mistakes. We can be punished by our professional body and by the courts if we behave unprofessionally or damage our client’s interests.  We can be ordered to pay compensation and we can be struck off and lose our profession.   These companies do not.
Be careful who you consult there are a lot of cowboys out there!

Great result this week for a really lovely client – you know who you are G. Really happy with the outcome in the circumstances of other party doing everything they could to sabotage our case. Thanks to our wonderful barrister Judith. Good representation by your solicitor and barrister really does make a difference!

I have dealt with a number of cases where an older husband in a short marriage faces loosing the home that he has owned for years (many years before the marriage) because his ex-wife wants half. Could this happen to you? Yes it could, even if the house is in your name. In matrimonial law it doesn’t matter whose name the house is in or the mortgage for that matter. The matrimonial home is a special asset and the court can share it equally even in these ciscumstances. However every case is different and has to be decided on its facts. There is no one answer to the problem and you wlll need to take expert advice. However to avoid this problem please consider a pre-marriage agreement. In many circumstances a pre-marriage agreement is recognised by the courts and could prevent you from loosing your home!
AS we know around half of all marriages end in divorce and many people are now marrying later in life, for the second time. A couple entering into second marriage are likely to have assets which a young couple marrying for the first time do not have. A house and pension are not unusual and there are also likely to be children from the first marriage. In these circumstances it a mistake not to think about protecting the assets that you bring to the second marriage. A pre-nuptial or pre-marriage agreement is the only way to do this. If you want to be sure that your pre-marriage agreement will be upheld by the court in the unfortunate event that your second marriage is unsuccessful you should invest in expert legal advice. Make sure that the agreement is prepared by someone who knows what they are doing and has a thorough knowledge of matrimonial law.