The Law Lords Mess It Up Again: Pre-Nuptial Agreements

The eagerly awaited decision of the Privy Council in MacLeod v MacLeod was published on the internet today.

When I say "eagerly awaited" I mean by family lawyers. It was the first opportunity for some time that the law lords have had to consider the validity of pre-nuptial/pre-marital agreements. Some lawyers had speculated that they might grasp the nettle and make them enforceable. They did not. Paragraph 31 is as follows:

The Board takes the view that it is not open to them to reverse the long standing rule that ante-nuptial agreements are contrary to public policy and thus not valid or binding in the contractual sense. The Board has been referred to the position in other parts of the common law world. It is clear that they all adopted the rule established in the 19th century cases. It is also clear that most of them have changed that rule, and provided for ante-nuptial agreements to be valid in certain circumstances. But with the exception of certain of the United States of America, including Florida, this has been done by legislation rather than judicial decision. There is an enormous difference in principle and in practice between an agreement providing for a present state of affairs which has developed between a married couple and an agreement made before the parties have committed themselves to the rights and responsibilities of the married state purporting to govern what may happen in an uncertain and unhoped for future. Hence where legislation does provide for such agreements to be valid, it gives careful thought to the necessary safeguards.

Thus it remains for parliament to address this issue but with no liklihood that parliament will do so in the foreseeable future.

Do they remain influential?

The Privy Council referred to Crossley v Crossley where it was said that a pre-nup could be a factor of "magnetic importance" but there is no explicit endorsement or condemnation. Thus we do not know whether that approach survives.

Lawyers have plenty of room therefore to argue it both ways as to what the law lords impliedy meant about the Crossley decision.

This has happened before. Hand the law lords a landmark case in family law and they bugger it up by introducing further confusion rather than giving clear guidance. The reference is, of course, to White v White. There are now many Court of Appeal decisions relating to how the delphic utterances in that case regarding, for instance, the yardstick of equality and the disapproval of sex discrimination apply in completely different circumstances to a family run farming partnership.

They did change the law, however; in relation to post-marital but pre-separation agreements. See later post.

The Ruinous Cost of Divorce in England

A lot of women if they can seek to have financial disputes on divorce determined in England. Perhaps, they fail to take account of the "ruinous costs" that can be incurred in this jurisdiction.

Mr Justice Munby has had yet another go at the level of costs sometimes spent in financial disputes in England. I say "yet another go" because Munby J does seem to get more than his fair share of this type of case.

In the title link case, KSO v MJO (8th December, 2008) he says:

Something must be done about the problems highlighted by this and by too many similar cases. We simply cannot go on as we are. The expenditure of costs on the scale exemplified by this and by too many other such cases is a scandal which must somehow be brought under control.

The way in which the litigation had been conducted had the following consequence:

The denouement was, in hindsight, perhaps not altogether surprising. The litigation simply collapsed under the unsustainable burden of paying costs which had long since become wholly disproportionate to anything at stake and which, by the time the parties arrived at the FDR, had swallowed up a grotesquely large proportion of the never very substantial assets. On 26 November 2008 I received the news that the husband had earlier that day been declared bankrupt on his own petition.

More poignantly Munby J explained:

The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If, instead of spending – squandering – over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial 'pot' to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. As it is, it is hard to see much being left from the wreck, not least after the trustee in bankruptcy has had his costs, expenses and remuneration. It is difficult not to be reminded at this point of Jarndyce v Jarndyce (see the Appendix). And the wife and the husband – and for this purpose I refer to them as the mother and the father, for that is what they are – are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this.

Warring parents rarely take account of the effects of their battles on their children. Munby J has said these wise words now and he has said them before but I detect that he is becoming dispirited by the fact that parents, husbands and wives who presumably once loved one another, seem not to be getting the message.

Links to previous relevant cases can be found in paragraphs 77-79 of Munby J's judgment.

QUIZ QUESTION: In which case did the wife and her legal team get it so wrong that she had to pay the husband's legal costs to an extent that really wasted her whole application?

Baby P and the Witches of Salem

I have refrained from posting about Baby P until now.

Of course, Haringey Social Services are crap. Almost all of our social services departments in England are crap. I hold no brief for the inadequate provision we make for children or their protection in this country. See previous posts.

BUT the media hysteria and their love of finding people not only to blame but to demonise is now beyond a joke. Well, there is an exception.

Sharon Shoesmith (Haringey's Head of Children's Services) hardly covered herself in glory by spending £19k on media training presumably designed to pad her bottom from the impending storm. She is also, but this is simply my impression, not particularly children friendly in appearance:

Politicians in Haringey have resigned. That was honourable. That the operational head of children's services should fall on her sword was immediately obvious to the whole population of the planet except, perhaps, just one. She seemed to think that the marketing guys could save her.

Perhaps, we should require potential heads of department at local authorities to sit a basic intelligence test. Possibly also, they could be asked to take an "emotional intelligence" test (whatever that it is). Almost certainly, a basic humanity test should be mandatory.

Local Authorities are very good at setting tests or performance targets or whatever so this should not be difficult. However, these are tests that would apply to them and not others. Oh, it might take a little longer then!

I forgot to mention: they would be required to pass the tests! Oh, and they should not be allowed to set the pass mark.

The caveat I started out to put forward is that we should not conduct a witch hunt of the troops on the ground. In my experience (as a lawyer in care cases - a period of my life that is, thankfully, over) social services personnel begin as idealists but quickly become corrupted into judgmental harridans - or the male equivalent - I incapable of not absorbing the departmental assumption of infallibility.

Don't worry about the Pope. He is an intelligent man and I doubt very much whether he really believes that he is infallible. He is probably too intelligent to believe in a divine being (whether called God, Allah or the Spaghetti Monster). Social Services (is it genuinely a coincidence that they managed to choose a description that abbreviates to SS?) really do believe that they are infallible.

I have now entirely forgotten why these people do not deserve to be persecuted (sorry, I might have meant prosecuted).

Oh, it is lack of money. We get the Social Services we deserve and are prepared to pay for.

East Sussex County Council Branded "Disgraceful" By The Court Of Appeal

East Sussex County Council is within my geographic area. Until the government rendered it uneconomic to maintain a legal aid franchise I used to handle child care cases involving them. I rarely came across a lawyer who did not regard their social services department as badly managed and arrogant. The Court of Appeal has now confirmed this opinion and condemned them. See the title link.

In argument, a number of adjectives were used to describe the conduct of the local authority / adoption agency [East Sussex County Council's SS] (henceforth "the agency") in this case. Over the period during which this judgment has been reserved, I have re-read the papers and reflected on the agency's conduct. In the event, I have come to the conclusion that the only word I can use to describe it is "disgraceful". That is not a word I use lightly.

Lord Justice Wall went on to criticise the barrister in the case (Ms Briggs of Crown Office Row in Brighton):

"During the course of argument, we gave counsel for the agency every opportunity to defend and justify its conduct. In my judgment, she not only failed to do so: worse, she did not appear to think the exercise necessary. On her argument, the agency was acting within the letter of the 2002 Act, and in the best interests of the child. Although she acknowledged that aspects of the agency's conduct were likely to be criticised, her attitude came across, to me at least, as – in effect – so what? If the 2002 Act permitted the agency to do what it did, why was the manner in which it did it relevant?

In my judgment, the conduct of the agency in this case demonstrates a profound if not total misunderstanding of its functions under the 2002 Act. Moreover – and this I find particularly dispiriting - it provides useful ammunition for those who criticise the Family Justice System for administering "secret" justice, and who attack social workers as a group for their arrogance and the manner in which they abuse their functions by both removing children from their parents unlawfully, and by stifling legitimate parental responses."

This was an adoption case. East Sussex Social Services forced through the adoption before the father of the child's application to set it aside could be heard. They were fully aware of the application because the father's solicitors had written to them.

"There was no reply of any kind to that letter. Counsel for the agency was either unable or unwilling to offer any explanation for the total failure to reply, but in my judgment, given the agency's subsequent behaviour, only two inferences, both adverse to the agency, can properly be drawn from that failure. They are; (1) that the agency did not wish to give the father or his solicitors any information; and (2) it wished, as the judge found, to "scupper" or "stymie" any application which the father made to the court. These two inferences are, in my judgment, irresistible. Indeed, there is no alternative explanation. Certainly counsel for the agency did not proffer any alternative."

And further:

"Both the agency and the recipient of the letter of 17 January must understand that the failure to answer the letter was not merely discourteous and thoroughly bad practice, but that it can only be seen as a deliberate attempt to keep the father in the dark, so that the agency could proceed to place the child and thus prevent the father from making an application to the court under section 24(2) of the 2002 Act. It is this conduct in particular on the part of the agency which leads me to categorise its conduct overall as disgraceful."

I need not go on but you should read this case if only to discover the full extent of the "abuse of power" and "sharp practice" in which East Sussex County Council's social services are prepared to indulge where the welfare of children is involved.

The Judge Who Judged But Had No Judgment

Judge Lincoln Crawford

Family lawyers will be familiar with the kinds of behaviour exhibited by Judge Crawford in the course of his divorce.

He became obsessed. He therefore harrassed his wife. He spied on her. He resented her new partner. He resented any contact between his children and his wife's new partner. He abused them both. He took photographs. He was upset and hurt and therefore human. He felt his wife's abandonment of him justified any retaliation he inflicted on either of them.

He reacted as a human being and not as a Judge. His distinguished career may now be in danger. This helps no-one, least of all the children.

I feel great sympathy for Judge Crawford. I have been through the process (although many years ago and I got what would now be called a residence order in respect of my two children).

The tabloids will no doubt misreport it. I recommend you to read the court judgment instead. Just click the title to this post. You will find that the wife and her new partner were far from paragons of virtue. One Judge concluded that they were not entirely truthful (translation: they lied to a court) and it should be noted that the wife (Ms Bronwen Jenkins) is Head of Employment Law at Irwin Mitchell's London office.

Quiz Questions:

1) Why is the title to this post ambiguous?

2) Is a Judge necessarily disqualified from judging others because he fails to exercise good judgment in his personal life?

3) If the answer to 2 above is "yes", how many Judges would we have left?

4) How do you spell "judgment"?

Mrs Charman in The Times (and in the money)

The interview with Mrs Charman reported in The Times is fascinating for family lawyers in many respects but I only want to focus on her extraordinary comment on pre-nuptial agreements.

"The wife who secured the biggest divorce award in British legal history backed the Court of Appeal judges over the need for prenuptial agreements.

Beverley Charman, 54, told The Times: 'I would definitely have one now and I would advise my sons to have them. But at the time we married we had no expectation of money.' "

Let me make absolutely sure that I have understood this:

(1) Does Mrs Charman mean that she would have agreed to a pre-nup, if Mr Charman had wanted one, before they married?

(2) Alternatively, does she only mean that she would want a pre-nup if she were to remarry?

She says "now" so I think the answer to (1) is probably:

Well, who knows, but I am bloody glad I didn't because I would not have this megafortune in the bank.

The answer to (2) would then be:

Absolutely yes. Do you think I want some passing fancy to walk off with my megafortune in the bank?

She then refers to her sons entering into pre-nups. Perhaps she is concerned about them marrying women like herself who are "not greedy"?

She conducted the interview at her solicitor's office. She may have been advised what to say. Who knows?

Whoever wrote the script, the only keyword thhat sums up this comment and, indeed, the whole interview, is hypocrisy - of the breathtaking variety.