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2012 Courses Announced | 11 May 2012
Resolution Kent is pleased to announce training for the remainer of 2012.
The Family Law Day will be taking place on 21 September with speakers from 29 Bedford Row and 1 King's Bench Walk tackling finances and children issues respectively.
23 November sees the return of the District Judges Forum, with District Judges Letham (Tunbridge Wells), Glover (Dartford) and Millward (Maidstone) returning to answer your questions.
Please see the events section for more details.
District Judge's Forum - 18 November 2011 | 16 December 2011
PANEL COMPRISED DISTRICT JUDGES MILLWARD, LETHAM AND GLOVER FROM MAIDSTONE, TUNBRIDGE WELLS AND DARTFORD RESPECTIVELY
1. Is there a need for a Judge to be designated to deal with collaborative law cases at each County Court?
ANSWER
No
2 Given the delays with listing and box work do the panel feel it would be possible and of assistance to set aside a time slot, say once a week, when practitioners could attend to seek clarification on procedural matters or approval of urgent Orders, etc?
ANSWER
Some courts offer clinic appointments when such matters might be addressed but increasing pressure upon the court system is making such arrangements harder to accommodate.
3. In the light of the decision in Grey v. Grey does the panel think a husband is more likely to be able to achieve a clean break where there are young or dependant children and the wife is in a long term cohabitation relationship?
. Does the panel think that the introduction of the compulsory Mediation Assessment and Information Meetings has led to a reduction in the number of Ancillary Relief and Children Act Applications being issued?
ANSWER
No. Much will depend upon the extent to which there has been any intermingling of finances. D J Glover advocated the use of a section 28 (1) direction.
Such meetings are not compulsory. D J Letham described the introduction as having no teeth. D J Glover said there were a lack of providers in his area. Now that Cafcass are confining themselves more to the task of safeguarding, he is considering an approach in Tunbridge Wells to have mediators at court on a rota. There is unlikely to be funding for this.
4. (a) Is it now possible to issue either an Ancillary Relief Application
or a Children Act Application without a Form FM1?
(b) Does the Court treat Applications from litigants in person any
differently from Applications issued by solicitors?
ANSWER
(a) Yes
(b) No
5. Could the panel please provide some clear guidance on how the Form FM1 should be used when lodging applications by consent - do both parties have to lodge a form?
ANSWER
A Form FM1 is not required with consent orders. Note the FPR changes mean that the statement of information in support of a consent order now needs to be counter signed by both parties.
6. What does the panel think is the impact in Ancillary Relief cases of the decision in Immerman?
ANSWER
The District Judges have had scant opportunity to test this point. A member of the audience explained that they return any papers that may have come to their attention from the other side and list in a letter returning the items what is being released. That letter can serve as a useful aid memoire for questions etc afterwards and yet does not constitute retention of any of the papers, copies etc.
7. In the light of the Supreme Court’s decision in Jones v. Kernott what evidence does the panel consider most relevant to impute an intention in the absence of a cleared inferred intention? Does the panel think that the principle of intention over fairness will survive? How does the panel think the decision will impact on such cases in future and is it right to depart from the parties’ original intentions on the TR1?
ANSWER
The evidence will be different in every case and will supply the answer to the difference between being able to infer an intention or impute one. Everyone was recommended to read paragraphs 13 and 72 – 79 of the Judgement. The following warnings were also issued that if you serve a notice of severance then the effect of that in the absence of a declaration of trust is that the severance achieves a 50/50 sharing. The District Judges also warned of negligence on the part of conveyancers if they are not advising unmarried couples to enter into a declaration of trust.
8. What does the panel think of the new forms in Family Proceedings? What are the most common mistakes made in completing those forms? Is there any intention to modify or revise them?
ANSWER
None of the panel were particularly fond of the new forms. Any issues that
arise one should write to the Family Rules Committee and that is District
Judge Darbyshire.
9. Do District Judges have hot-tubbing sessions and discuss differences in approach? If so, and in any event, why is it that some common attitudes cannot be agreed e.g. approving clean break settlements where there are minor or dependant children?
ANSWER
There is often very little time to have any in-depth discussions, although they will go on where possible. On the subject of attitudes not being the same, this arises as a result of the exercise of judicial discretion. As an aside, there was a view ventured that a more inquisitorial style of questioning litigants in person will become necessary but it will mean that cases will take longer. We were urged to encourage litigants in person to use a Mackenzie Friend who can help them listen and understand.
10. Does the Court have jurisdiction to “enforce” CSA arrears where the Agency have not been collecting payments? One local Court seems to say yes and at least one says no.
ANSWER
The court does not have jurisdiction. In the case in 2005 involving Miss Keo it was determined that she had no such rights and must refer to the CSA to enforce.
11. Does the Court have jurisdiction under FPR 20.2(c)(v) to make an interim order for sale of real property?
ANSWER
The authority of Wicks says no but a member of the audience then said that District Judge White at the Principal Registry has just made such an order. District Judge Letham felt that an argument on this point would be very interesting and while he doubted one could go against the authority of Wicks, he would still be interested in anyone seeking to try! District Judge Glover said that perishability could not apply to property but the other arm of the reasoning enables it to be for any other good reason which could mean anything. However it was still felt that the principle of only being able to make one order should prevent an interim order for sale.
12. Is the panel particularly worried about what is pleaded in an unreasonable behaviour Petition provided the allegations appear to satisfy the fact?
ANSWER
Not particularly. There needs to be 3 or 4 decent points made which can contain both subjective view and an objective assessment of what was therefore unreasonable.
13. Does the panel think it would be possible for the Notice of Proceedings issued in Children Act Applications to include not only the time of the hearing (or Cafcass appointment) but also an earlier time by which the parties and their representatives should be at Court, similar to the requirement for all parties to an FDR hearing to be at Court one hour prior to the hearing? This would enable lawyers in publicly funded cases to claim fees from the time of arrival at Court rather than from the time of the hearing.
ANSWER
The court is alive to this predicament and is willing to permit this.
14. Does the panel think that couples who have cohabited for a fixed period of time say 2 years should have similar financial rights entitlements and obligations to married couples or should there be a clear distinction drawn in financial terms between married and unmarried couples?
ANSWER
When this subject was debated by the Kent Resolution membership a couple of years previously, the majority view had been that the law should not be changed because it was not easy to see that any change would make the situation ultimately better. District Judge Letham expressed his views that a change in the law to offer greater clarity.
15 Could the panel confirm their view on how box 7 of the new Affidavit in support of the Petition – 2 years separation should be completed when the parties have lived in the same property but not shared any communal living? In one case “no” was ticked where the parties lived in the same property but within separate households yet the District Judge requested further affidavit evidence concerning the living arrangements.
ANSWER
It was recommended that as there was insufficient space to give details, the information about how they were separate households could be provided on a Rider. That would obviate the need for a further affidavit to be produced. Again this may be something that could be addressed by writing to the Family Rules Committee.
16 Following the Norgrove Report what single key change in the Family Court system does the panel think we are likely to see in the next 5 years that will enhance access to justice?
ANSWER
District Judge Millward felt that if the last few words were omitted there might be an answer to the question but all the panel were somewhat sceptical of there being any improvement in the system. Whilst the Norgrove report is idealistic there is simply not enough money.
The panel explained that to get listing of ancillary relief final hearings within a year of the Form A, HMTCS will need to have that as a target. As no target is currently set there is no incentive to list ancillary relief cases whereas there are targets for other areas. Comment was also made that we need a properly funded legal profession. District Judge Letham commented that there is a fundamental misunderstanding that mediation can succeed/replace the court, where you have the rigour of the law on one hand and expectations that are unrealistic on the other. More unhappiness and disharmony are likely and may only make matters worse.
During the question and answer session attention was also drawn to the fact that Cafcass are using a “every child matters” checklist which does not encompass the full welfare checklist. All practitioners were encouraged to ask for specific directions for the report to cover the welfare checklist. Capability of parents is not part of every child matters and the lack of that is leading to some strange Cafcass reports.
Family Law Day | 9 September 2011
The Resolution Kent 2011 Family Law Day is rapidly approaching, and if you have not already booked, now is your chance to do so.
There has been a change of speakers, with Simon Calheam of 29 Bedford Row unfortunately unable to attend.
In his place, Patrick Chamberlayne QC will be speaking.
This is an excellent opportunity to hear from leading counsel at a very modest price. Space at the venue remains limited, and therefore to avoid disappointment, please book now.
Please see the Events section for more details.
KENT SOLICITORS GIVE LOCAL CHILDREN'S CENTRES A SEASONAL BOOST | 30 December 2010
A group of family lawyers in Kent have kicked off the season of goodwill with a festive £500 donation to help local children affected by family breakdown.
The local group of the family lawyers’ association Resolution has donated the funds to the National Association of Child Contact Centres (NACCC) to help develop supported and supervised contact services in Kent for children whose parents have separated.
“Christmas is traditionally seen as a time for families,” said Dawn Harrison, Chair of the Kent branch of Resolution, which represents almost 200 lawyers across the region. “But as many separated parents and their children know only too well, managing Christmas across two households can be extremely challenging.
“While many families can come to their own arrangements about contact with their children at this time, some families need a little extra help. That’s why NACCC’s support to its member centres in Chatham, Ramsgate, Sevenoaks, Tonbridge and St Augustine’s in Folkestone is so important. They provide a safe, friendly and neutral place where children of separated families can spend time with one or both parents.
“The Kent Resolution group wanted to show our appreciation for the vital service that these centres provide to the local community and are delighted to make this donation today”.
Ann-Marie Stubbs, NACCC’s Regional Support Manager for Greater London and the South East said: “This donation could not have come at a better time for our member services in Kent and I’d like to thank Kent Resolution for their kind donation.
“Since May 2010 NACCC has been developing in Kent and we have seen applications for new, accredited, supervised child contact services grow in number across Canterbury, Sittingbourne, Faversham and Dartford. This vital work can only continue with ongoing support, which is why this donation has been so significant”.
To help separated parents manage the challenges of child contact at Christmas, Resolution and the NACCC have the following top tips:
- Put your children’s needs and feelings first. Discuss arrangements with the other parent and try to share both the pleasure and the responsibilities.
- Let the children know that even though things will be different, Christmas can still be special. Work together with your children to create new Christmas traditions in each home.
- Think long-term and stay flexible. You may want to be with the kids on Christmas Day but there will be other Christmases. It may be fairest to agree to alternate which household the children are at from one year to the next.
- Don’t compete with your ex over presents for the children. Instead, discuss what presents to buy so that you don’t duplicate. Consider whether it would be helpful to continue the tradition of a joint present from both of you. And allow your children to decide where they will keep their gifts.
- Ask for help if you need it and make sure to use the wealth of resources designed to help separated parents manage. Resolution’s Parenting after Parting advice pages at www.resolution.org.uk/parentingafterparting are full of useful tips and advice and also contain information on specialist workshops for parents going through divorce.
THIS HOUSE BELIEVES THAT JUDICIAL DISCRETION IS RUINING OUR PROFESSION | 26 January 2010
The Kent Region decided to run a debate ahead of their annual AGM in November 2009 following the huge success of their debate a year earlier in celebration of the 25 year anniversary of Resolution, formerly Solicitors Family Law Association. The title of the debate was intended to engender intellectual argument, along with some lighter relief for such a controversial subject.
We were very indebted to our esteemed panel with His Honour Judge Hopmeier chairing the Debate. He was appointed to the position of Circuit Judge on 14th July 2009 and is currently based at Kingston Crown Court on the South Eastern Circuit. He is no stranger to family law having been a member of the family set at Hardwicke Buildings until his recent appointment.
The Chambers of 1 Hare Court and 29 Bedford Row pitted themselves against each other on the motion. 1 Hare Court were for the motion, 29 Bedford Row against. Richard Sears opened his presentation for the motion knowing that he would be followed by Christopher Wagstaffe and then Petra Teacher of 29 Bedford Row, enabling Stephen Trowell to sum up for the motion.
Richard Sears described us as a profession of pragmatism predicting quick solutions with an acceptable degree of accuracy. He announced that the current form of judicial discretion undermines that effective and pragmatic ability that we, the legal representatives, can offer. Some of the recent headlines have, he argued, placed trial Judge on a pedestal so that their Judgements can only be interfered with exceptionally.
He suggested that the values of family life that are accepted in the community may not be reflected in the Judgements awarded, but they could not be challenged currently. Proponents of the current system argue that the flexibility it offers trumps its shortfalls but he disputes that. Richard observed that different minds reach different decisions and likened this to fairness being like beauty in that it lies in the eye of the beholder. He described fairness as an instinctive response that could not be justified or refuted by logical reason and that one’s sense of fairness changed through generations.
He sought to demonstrate with reference to some recently decided cases how the exercise of discretion rendered indications at FDR completely altered by the Judge at final hearing. The first case he described was on the facts of a 55 year old wife who had been married for 2 and a half years to a retired widower. Less than 21 days before they were married they completed a prenuptial agreement in which she was to receive 40% of the house that had been the widowers and a pension share. The Judge at FDR considered the wife to be a gold digger and said nobody should pay regard to a prenuptial. There should be no provision for the wife. At final hearing, the wife was awarded £120,000 lump sum to clear the mortgage she had on her own property plus £40,000 in legal costs. She also received a 39% pension share. Whilst the prenuptial was still not upheld, the outcome was very different. Richard queried whether this demonstrated a legitimate ambit for judicial discretion.
He went on to say how difficult it is in a needs case to predict the outcome because District Judges differ on their assessment of “need”. He also suggested that this therefore undermines our efforts to achieve alternative dispute methods of resolution because we are unable to predict accurately what can happen. How can we hope to keep people away from litigation? Of course the Mediators amongst us would counter this by pointing out that Mediation empowers people to make their own decisions. He also complained of how the courts are clogged up by cases that are fighting that should not be there and the considerable delay that often occurs between FDR and final hearing. He observed that costs incurred placed we, the profession, in a bad light. He also commented on the cost not just being for lawyers but also the impact on the children in terms of contested and uncertain outcomes. Richard concluded that bespoke solutions that can currently be crafted by the judiciary are palpably incorrect and he summed up with the words of Andrew Greensmith, Chairman of Resolution in 2007 when he said that players of the ancillary relief game find the rules dangerously outmoded.
Christopher Wagstaffe spoke next. He was a late replacement for Ken Collins, a trained Collaborative member of chambers who had been billed to present for the opposing 29 Bedford Row team. Chris began by presenting a scenario in which Llian is aged 25 having left school at 18 with a few GCSE’s and become a civil servant living in a rented flat with Steve. Her sister Sarah is due to be married. It is 11.30am and in her capacity as listing officer in the county court, which Judge’s list she puts two different cases in could predict a different outcome for each. She determines on using the alphabetical order approach. If it had been otherwise, what would have occurred?
Next he responded to Richard’s challenge that there are inconsistencies between FDR and final hearing by saying we have to trust the Judge to make the best decision. At this juncture His Honour Judge Hopmeier said many a time at this stage I have asked the parties to go outside and settle!
Christopher Wagstaffe commented that we could create a formula like the CSA and we know how well that works! He drew our attention to the law in Scotland where what you take into the relationship you get to keep. Anything jointly acquired is split equally. The remedy for any transitional problems is through a 3 year maximum maintenance provision unless there are exceptional cases but even then there can be no maintenance beyond 10 years. So even in a more defined system injustice can still arise.
Most of the time with a formula you will get reasonable decisions but there may be say 10% of problems at the margins. America has the same problems although their system is different.
After looking at the different systems, he went on to discuss what happened in the 60’s and 70’s with TOLATA type cases. Pre 1973, married couples used this approach to argue that the wife was already entitled to her share rather than attempt to argue she should have a share. His point was therefore that we, the lawyers, change our approach to suit the objective. He queried is it the rules of the game, the player or the Judges that are at fault? He said how many times have we been involved in a dispute where the husband does not want to pay the wife money and the wife wants more. Both reveal attitudes that are impacted on by gender but if you were to change that you would improve outcomes.
When you consider that you can see only 5% – 10% of cases go to court, the system currently suits most cases. So is it such a bad system given that most are therefore predictable outcomes?
He asked whether we would have a better or just different system if the rules were changed. He felt it would be different not better. What we are trying to establish is justice and to do that we have to entrust Judges with the facts and allow him or her to come to a solution. He argued that is better than a “sausage machine” formula and invited the audience to oppose the motion as he did.
Petra Teacher then stepped up to lend support to what Chris Wagstaffe had said. She opined that tailor made solutions are needed because one size does not fit all. She said we need to be responsive to each single family.
She dealt with the tension between flexibility and certainty that we all face with our clients. She said certainty is the aim of the law whilst uncertainty is unfair. However flexibility is better to achieve fairness.
She observed that one of the benefits of judicial discretion is it can move with changing social attitudes. The law commission regarded this as appropriate. Petra said it was important that Judges could move with the times rather than be constrained by Parliament. She also said that currently there was no desire to wade in to change the law there, being insufficient political will.
She said if we argue that discretion ruins the profession what else can be done? She drew attention to two areas where there is no discretion they being TOLATA which applies very black and white principles of trust law but discretion has developed in that. Also the CSA now CMEC originally was a fixed system but that has been massaged to meet different circumstances. When parliament acts to try to lay down principles that do not permit discretion, these are the results. She therefore concluded that the motion could not be supported.
The Debate was concluded by Stephen Trowell stating that all his material had been used. He sought to win us over with one of the few jokes of the afternoon “what do you call a Judge with no thumbs” Answer: Mr Justice Fingers (interjected by Chris).
Having the advantage of hearing all the other arguments he was able to succinctly summarise points for the motion. He urged us to acknowledge that it is parliament’s role that we must respect. The judiciary do not have a legislative role. He said a narrower discretion may be an advantage but we still need judicial discretion. He said we cannot have imposed on us needs, compensation and sharing when only “needs” are actually enshrined within the statute.
He also said we have a good reputation if we leave our clients with as much money as possible!
By cleverly suggesting that perhaps the judicial discretion was too broad, he may have clinched the deciding vote by narrowly encouraging those attending to vote in favour of the motion when His Honour Judge Hopmeier put it to the vote. That was not before the audience of Kent presented many points to the panel and there was some considerable debate on what we might do to replace the current system and offer a narrower discretion. As always, there were differing viewpoints.
The Debate was as successful, if not more so than last year. It combined lively discussion with a great degree of humour. The feedback forms were very positive revealing that I wasn’t alone in having a good time. The serious outcome of course is that there is support within the membership for our Law Reform programme, but in Parliament.
ANCILLARY RELIEF UPDATE AND THE CREDIT CRUNCH SEMINAR PRESENTED FRIDAY 5TH JUNE 2009 | 10 June 2009
In the economic gloom of current times the above seminar offered to come to our rescue! We were treated to a well presented and entertaining analysis of the interplay of the law of bankruptcy and ancillary relief and other more general issues pertinent to these difficult times.
Our two speakers were from 29 Bedford Row. First to present was Victoria Domenge (1993) on the interaction between bankruptcy and divorce, greatly assisted on account of her involvement in Paulin –v- Paulin [2009] EWCA CIV221. Victoria spared us too much dry law whilst identifying all the pertinent practical issues that arise when there is a risk of bankruptcy. She dealt with the effect of the bankruptcy order as well as the interaction between ancillary relief orders and bankruptcy orders, depending on when the orders and bankruptcy petition were presented. As ever, timing plays an important part in the route to successfully attacking a bankruptcy order. An invaluable guide was also included to avoiding pitfalls and the risk of negligence action.
Claire Renton (1972) a regular lecturer on family law for Lawnet and other specialist training groups spoke more generally on issues pertinent to ancillary relief at this time of economic downturn. She led with a review of the Myerson –v- Myerson 2009 case. Although leave to petition the House of Lords has been made, this case demonstrates how difficult it will still be to satisfy the Barder test even in more uncertain times. Foreseeability is a critical factor in this and other cases reported. Claire also dealt with variation applications and the likely outcomes viewed against the most up to date authorities. The granting of nominal maintenance orders may once again be more prevalent than the clean break in times of uncertainty. Claire also warned against excessive investigation of disclosure when one has to consider the expense involved and concerns of proportionality when asset values and other economic factors are depressed. Many more tips were covered so we left feeling much better informed in relation to current thinking and judicial attitudes in these interesting times.
Our thanks go to the 29 Bedford Row team who were as always more than happy to answer group questions or discuss individual concerns. My thanks also to Jonathan Miller of Whitehead Monckton who managed all the duties associated with making the afternoon presentation a seamless and professional event.
If anyone was unable to attend the seminar, then there is an all day course being offered in London on 3rd July which will cover many of the aspects handled in the Kent seminar. If any member in Kent has a particular subject matter that they would want covered can they please let myself or one of the other committee members know?
Dawn Harrison Chairman of Kent Resolution
Young Kent Resolution Debate | 8 June 2009
Young Kent Resolution held its second successful event on 23 April 2009, a debate about Pre-Nuptial Agreements. Arguing the motion "Pre-Nuptial Agreements: contrary to public policy or of magnetic importance" were junior barristers from London chambers 4 Paper Buildings and Coram Chambers.
Mary-Jane Taylor and Maryam Akhavan-Tabib of Coram Chambers argued for the motion withRebecca Foulkes and Elizabeth Couch of 4 Paper Buildings arguing against.
Convincing arguments were put forward for both sides of the motion. Coram Chambers made a strong case for the importance of the Pre-Nup in the 21st Century and the right of the parties to structure their own affairs. In the end however, the majority of the audience were moved by the arguments of 4 Paper Buildings, voting 16 to 2 that they were contrary to public policy.
The overall consensus was that the current approach, where a Pre-Nuptial Agreement is taken into account as a relevant factor but not as a factor of magnetic importance, is the correct one.
The debate was chaired by Niki Langridge of Coram Chambers and Vanda James of Warners Solicitors, who kindly allowed us to host the event at their Tonbridge office.
Young Kent Resolution are planning further training and social events for 2009 and 2010. If you would like information about future Young Kent Resolution events please contact Sarah Keily at Thomson Snell & Passmore on 01892 510 000 or sarah.keily@ts-p.co.uk.
Young Kent Resolution Launch Event | 2 December 2008
Following the success of other Young Resolution groups, Young Kent resolution was launched on 13th November 2008 in Maidstone.
The Young Kent Resolution Committee members are Alice Biggs-Davison and Abigail Harding of Warners, Sevenoaks; Caroline Bourn of Buss Murton, Tunbridge Wells; Anne Guppy of Rix & Kay, Uckfield; Sarah Keily and Joanna Norris of Thomson Snell & Passmore, Tunbridge Wells and Laura Smail of Cripps Harries Hall, Tunbridge Wells.
The launch event was held at Brachers Solicitors, Maidstone and special guests District Judge Millward of Maidstone County Court and District Judge Lethem of Tunbridge Wells County Court spoke to over 30 young family practitioners about advocacy tips, common pitfalls and helpful suggestions for the young family lawyer.
The talks were extremely well received and were followed by questions and answers from the audience. Members and guests stayed to enjoy drinks and canapés afterwards.
Young Kent Resolution are currently planning training and social events for 2009. If you would like further information about future Young Kent Resolution events please contact Joanna Norris at Thomson Snell & Passmore on 01892 510 000 or joanna.norris@ts-p.co.uk.
Joanna Norris, Sarah Keily, Dawn Harrison
Anne Guppy, Sarah Keily, Laura Smail, District Judge Lethem of Tunbridge Wells County Court, District Judge Millward of Maidstone County Court, Joanna Norris, Alice Biggs-Davison and Abigail Harding.
The launch in full swing!
Seminar and AGM summary | 2 December 2008
On 28 November the Kent Region held both its AGM and traditional seminar beforehand.
Delegates heard from Simon Gill of 29 Bedford Row on the ever tricky areas of both costs in family proceedings and prenuptial agreements. Simon was followed by his colleague from chambers, David Walden-Smith, who drew our attention to other recent ancillary relief developments. All this before the tea break!
After tea, Simon Fisher of Cane Cohen Limited, Chartered Financial Planners skilfully drew attention to pension pitfalls (and how to avoid them!), including highlighting problems that we will all as practitioners face more and more.
Feedback for all the speakers was very positive.
Afterwards, we decamped to the bar for the AGM. Long serving committee members Myrtle Walter, Terry Payne and Fiona Wilson formally stood down, with the Chair’s thanks for their service. New blood was also introduced as Joanna Norris and Sarah Keily joined the committee, sharing a place, having set up a successful launch of Kent’s Young Resolution group earlier in the month. The Committee is already looking forward to the challenges of 2009!
To cohabit is a bad habit - Kent Region Debate 26 September 2008 | 5 November 2008
When Lord Lester and Resolution sent around their consultation paper this September entitled “reforming the law for people who live together”, as Chairman of the Kent Region who had organised a debate on this very topic, I could not be more delighted. We had a great turn out with many members interested in discussing the reforms prior to returning their response to the consultation paper.
We were very honoured to have the sharp minds of Philip Cayford QC and Peter Mitchell from 29 Bedford Row presenting for the motion and James Turner QC and Harry Oliver of 1 Kings Bench Walk against the motion. Chairing the debate was His Honour Judge Polden who became the designated Family Law Judge for Kent on 1st September 2008 having distinguished himself as a District Judge in the region for many years and before that practising as a partner in a local Kent firm of solicitors.
The debate was fiercely contested but with a great deal of repartee and comments from the audience to enliven the points under consideration.
As you would expect from a room full of lawyers, factual analysis and statistics were the first port of call for most of the debaters. Philip Cayford began with a statistic that two thirds of the general public think there is no difference between married life and those that cohabit. The social trend towards cohabitation has become increasingly more marked in recent years. Is this social change presenting a problem? The answer is clearly yes but what to do about it is not so easy to determine.
Much mirth was created with discussion of whether it is a good or a bad habit to live together. Under the current law, it was said that it is a dangerous one. Despite governmental efforts to educate our society on the current distinction that is drawn in law between those that cohabit and those that marry particularly as regards breakdown of the relationship, there is a woeful lack of understanding of people’s rights and responsibilities. Too many dangerous assumptions are made about how people will be treated and more often no consideration or thought is given to this at all.
Lord Lester’s consultation acknowledges that the definition alone of cohabitation, who to include, who not to and in what form is a difficult one. Is it appropriate to create another layer or group of people for whom there are defined rules distinct from other groups? The bill proposed by Lord Lester and Resolution certainly encourages us to embrace this proposal but doubts were expressed by the debaters’ and from the floor as to the workability of what was proposed.
Schedule 1 and TOLATA are well used by the specialist family lawyer in currently dealing with issues that arise for cohabitants together with the Family Law Act but it is by no means a complete and perfect package of provisions. Ultimately, it was promoted that successful societies need to adopt discipline in order to survive and a lack of it, by going along with the “bad habit” of cohabitation is contributing to the “broken society” view identified not least by our very own Justice Coleridge at the Resolution conference in Brighton in April of this year.
James Turner QC rebutted Philip Cayford QC with the words “do not trust statistics”. He entertained us with such lines as “far from cohabitation being bad, it’s a jolly good habit for very many people”. He argued that cohabitation offers greater stability and countered that the social problems arise from something other than the cohabitation. Relationship breakdown whether married or not is more to blame for our current difficulties.
Of course he quipped marriage would be a sad state of affairs without cohabitation! Some of the financial consequences of relationship breakdown are bad but not the cohabitation itself. The age old joke was rolled out “The institution of marriage - who wants to live in an institution?”
James Turner QC argued that instead of entering into marriage you simply need to make the contract of cohabitation binding. A contract properly drawn without undue influence between consenting adults, should simply be the end of the argument. The children have the same rights whether their parents are married or not. The lovely line “marriage is like a hot bath, once you get used to it, it is not so hot!” kept us on the light side of this serious topic and the case against the motion was rounded off with the saying about the three ringed circus that marriage creates: engagement ring, wedding ring, suffering.
Having heard from the persuasive silks it was the chance for Peter Mitchell and Harry Oliver to enter the sparing ring.
Peter Mitchell began by observing that cohabitation is indeed a very bad habit for matrimonial lawyers so why don’t we all vote now on the motion. Then he got down to the serious business of identifying what the words in the motion really meant before exploring the elusive answer. After poking fun at the definitions, he punched out at James Turner’s comment by saying it is the last refuge of a scoundrel to challenge statistics. He looked at research from the Bristol Community Family Trust which had looked at the wider concept of family groups. People in a cohabitation relationship were likely to lead less advantaged lives that would impact on school, work and well being. Marriage offers a more stable environment even with the poor divorce rates. Behavioural and emotional difficulties become ever more apparent in children at secondary school level. These and other findings are stark warnings to us regarding the trends in society. However, whilst academics can show clearly that marriage produces better outcomes, delivering that to the general public remains a real problem.
Peter then looked at the law reform proposals. If you begin with the premise that the current law is unfair it is understandable that we are now looking to see what the law can do to normalise matters. As had been said before, legislating however, provides no easy answers and the current proposal identifies problems in terms of its definition, how broadly it is applied and whether it includes carers, siblings etc. The next question the consultation asks us is should there be comparable rights or should there be a different layer with cohabitants having lesser rights than married couples. It was felt that the bill in its current form presented some muddled thinking in relation to these matters. Why create another institution when we already have marriage and civil partnership? By creating another set of rules and criteria it was argued we will simply replace one injustice with another.
Into the final round strode Harry Oliver with his highly colourful asset schedule designed to present the facts and figures in such a way that secures the win. He who goes last shall be first.
He said, surely if cohabitation is on the increase it gives rise to more fathers being at home as opposed to the one parent family arrangement? Of course there are many different types of cohabiting couples, there are those that are informed and those that are not, those that are reluctant and those that really get no choice in the matter. Trying to cater for all of these is a hard task for a new bill. The good thing about cohabitation is that a failed one saves the people in it from a failed marriage and so they save lots of expense on the wedding but they probably do still have to have a high level of expense with their lawyers!!
Harry presented quite an impressive list of “celebrities” who have cohabited successfully for many years. How far should our law go to protect those whom we regard as vulnerable? The current law is already designed to deal with the vulnerable sections of our society and trying to make it more complete and perfect will not be easy. Most of the debaters’ remembered poor Mrs Burns who came out of a 20 year relationship with nothing. Now of course she would do better so why do we need to change the law?
It was a surprise outcome after hearing all these views to find the eventual vote presided over by His Honour Judge Polden deciding that the motion for to cohabit is a bad habit won. Those who attended the debate were supportive of initiatives that help to inform and educate as opposed to more complex law making. It was Harry Oliver that reminded us all that a banner headline in the press had read a couple of years ago, “law commission recommends cohabitants to get the same rights as married people”. An awful lot of people now assume that this is already so. A search for the right answer is always a difficult one and to help us in our quest we all decided to adjourn to the Bar for some tempting canapés and alcoholic refreshment. There is no doubt that even if the bill under consultation does not make the statute book, this is an important subject meriting our attention and we are indebted to Resolution for the energy they bring to addressing such issues.
We had an overwhelming positive feedback from the delegates who enjoyed not only the style of the presentation and opportunity given to contribute to the debate but the chance to play their part in consultation over proposed reforms, that if made law, we have to deal with in practice. There was a suggestion for broader reform of family law but that would be an even greater undertaking.
L-R: Philip Cayford QC, James Turner QC, Harry Oliver, Dawn Harrison, His Honour Judge Polden, Peter Mitchell
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