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Posts Tagged ‘ancillary relief’

snake

the aptly named rat snake (thanks to Cotinis on flickr)

Andrew Commins, a colleague in chambers, has written an interesting article for Family Law Week on the impact of remarriage on variation applications by the ex spouse. I particularly like the mental image described in the extract from Delaney v Delaney [1991] 2 FLR 457, CA, that the court will deprecate “any notion that a former husband and extant father may slough off the tight skin of familial responsibility and…slither into and lose himself in the greener grass on the other side...” (Delaney, at page 461E).

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Fork tongued husbands be warned…

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A bit Woolley…

A couple of tweets from @woolleyandco alerted me to some interesting posts on their blog: Andrew Woolley has it spot on about Baroness Deech’s curiously reality-detached approach to humiliating divorce settlements (I think she means demeaning, but anyway). “You say humiliating, I say equality…”. Doesn’t scan but you get the point. And as for the post on Baroness Deech’s remarks about grandparents’ entitlement to financial recompense for their gratis childcare – well I’ve posted previously about the political expediency of pandering to grandparents rights organisations, and all I have to add is this observation: do we really want to go down this road? If grandparents are entitled to claim maintenance from their children who ‘take advantage’ of free childcare, will the parents be able to recoup that in later years for the care they will give the elderly grandparents? Or perhaps parents should be able to recoup their childcare costs from their children’s earnings in years to come? We could all do with acknowledging how much grandparents offer their children and their grandchildren, but their contribution is more than one dimensional – financial support, childcare, time and love. And isn’t the essence of (grand)parental love that it is voluntary?

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My own parents routinely take our son for a day a week, but whilst for them they are pleased to feel they have helped us out with childcare, we are pleased to ensure that they have some quality time with their grandson. We try not to rely on it as failsafe childcare, being sensitive to when they have something else they need to do that day, but we would want to keep up this special time with grandma and granddad even when we aren’t at work. For my son Monday is Ga-mma day. It’s not a transaction we could quantify with money. That would be demeaning. I do see the arguments for being able to claim working tax credits childcare element if a grandparent is giving up a large chunk of their week and is prevented from earning money through other work (although I also see the difficulties with it), but to create maintenance obligations between different tiers of family members just undercuts the whole notion of family helping family – politicians are obsessed with trying to strengthen the family and ‘mend’ society, reducing the family to a set of financial obligations or contracts is not going to help cement our society together or make our children happier.

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As a footnote, its heartening to see that what I would call a ‘marketing blog’ can still be an interesting read, and can contain some real and insightful opinion. If a blog is worth doing it has to contain some human input and not just be an endless stream of advertorial. Whilst Woolley and Co have clearly invested heavily in their online media marketing strategy, they are doing it well. So many other firms are doing it badly.

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What odd times we live in. The Guardian reported on Saturday that hedge fund managers are now betting on the outcome of high worth ancillary relief cases by funding the litigation costs of one party in return for a largeish chunk of the prize.

Given that this is the type of arrangement which springs up where traditional sources of funding are unavailable because of the unpredictability of a return on investment, this tells us something about the lack of legal certainty available to litigants in this area of law.

Still, its a problem most of us will never have. For most of us legal certainty means the sure knowledge that our fortune is so small it is scarcely worth the legal fees. I wish my spouse or I were wealthy enough for hedge funds to be interested in taking a punt on one of us should we ever fall out. You’ll excuse me for being such poor company – I’m still getting over the disappointment of having had four numbers in Saturday’s draw only to find that my other half had read out the numbers for Wednesday’s draw. Does that count as grounds for divorce? Can I run it as conduct? Anyone fancy my chances?

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I have not had time to read the full report of this case reported last week in The Times: Lewis and Another v Metropolitan Property Realisations Ltd (Court of Appeal, July 15 2009), but it is certainly going to be worth a look both for families concerned about losing their home and ex-(or soon to be ex-)spouses wondering whether the bankruptcy bears upon the ancillary relief. At time of posting it doesn’t yet appear to be on www.bailii.org. Judging from the brief summary in The Times it tells us this though: that a TiB has three years from the date of bankruptcy to get his money out of a former matrimonial home, or else the property will re-vest in the bankrupt. In this case on the day before the 3 year window ended the TiB had purported to transfer his interest in the property to a third party for consideration of £1 and 25% of any eventual sale of that interest. This little ruse did not work held the Court of Appeal, as it did not fall within the meaning of ‘realise’ as required in s283A(3)(a) of the Insolvency Act 1986. Thus, the property vested back in the name of the lucky LUCKY bankrupt.

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This case concerning the Spencer Divorce is the second case I have seen reported where counsel have tried to argue for privacy within ancillary relief proceedings – and failed. The characteristic of both cases is that the argument was focussed on ousting the media from the hearing in the first place, rather than on restricting what portion of what had been observed could be reported. In both cases they were sent out with a rather public flea in their ear. In the Spencer case the battle now shifts onto the reporting restrictions.

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What I suppose was not lost on the parties in that case (who both supported a media ban) was that although there may be nothing terribly exciting or newsworthy about the divorce itself the rules permitting media access would give free reign for the prurient eye of the media to roam through the embarrassing details and little extravagances of expenditure that might be the kernel of a story in a desperate hour. Of course the media would not have access to the documents themselves (at least not without prior successful application to the court) but cross examination in ancillary relief cases may well have highlighted this and that – enough to get their teeth into.

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No doubt the media will be more interested in reporting the costs of caribbean cruises or private jets that make up the expenditure of the rich and famous than of the detail of Mrs Blogg’s monthly tesco bill, but I don’t really see that wealth or celebrity ought to raise an entitlement to privacy that is not afforded to the rest of us. Whether silken lingerie or tesco kecks none of us much wants to wash our dirty laundry in public, but rules is rules and the clear policy behind them was to open up the hearings to the media. In the course of time once the new regime has bedded down we will perhaps see a proper refocussing of energies (and costs) into applying for reporting restrictions, where appropriate, rather than attempts to ban the media from attending in the first place which appear not to be finding much favour with the courts.

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Ancillary to NOTHING

Where there is no lawful marriage there is no divorce and where there is no divorce there is nothing for ancillary relief to be ancillary to. The BBC reports on the High Court ruling recently in respect of a distant beach marriage that did not create legal ties. Did this poor lady never hear of Jerry Hall? Sad story, but not in fact terribly interesting legally. What an unpleasant argument to have to run on behalf of the not-husband.

If that were a tale of the innocent deprived of their just deserts, this by contrast is a tale of a refusal by the courts to help an applicant for ancillary relief which is far less likely to arous you sympathy: this case of a paedophile convicted of sexually abusing his ex wife’s grandchildren is a rare example of conduct deemed bad enough to warrant the court refusing to exercise its discretion.

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Poor old Mr Myerson’s appeal has been dismissed. Aw….

Haven’t had time to read it – just skipped to the end to establish he lost. But I thought you’d like to know…

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