Laws of Love

My attention was drawn today to the recent case of Imerman v Tchenguiz [2009] EWHC 2024 QB, which covers the fraught area of financial disclosure in divorce proceedings. The case is in fact however, a shocking example of the lengths people will go to out of mistrust!

The case concerned a Husband who had been in business with two of the Wife’s brothers. This business relationship had seemingly gone well for a few years and in fact some of the Husband’s businesses were based at premises owned by the brothers and also, importantly, his PC was linked to server space on the brothers’ businesses servers.

When the Husband’s marriage to the brothers’ sister broke down, the brothers then allegedly took it upon themselves to log-in to the Husband’s files (which were password protected, albeit that they knew the password), and they downloaded over various dates a range of documents numbering somewhere between 250,000 - 2.5m pages of documentation when printed! The brothers stated that they had done this owing to concern that the Husband would not properly disclose his wealth in forthcoming proceedings.

Perhaps unsurprisingly the Husband then applied to the Court for injuntive relief to prevent onward transmission of the information to any party, including the Wife and her solicitors. This claim was brought in the Queens Bench Division of the High Court rather than the Family Division as that was the appropriate jurisdiction given it was the Wife’s brothers, rather than the Wife, who had taken these actions. In due course the matter came before Eady J when the Husband sought summary judgment on his claim for injunctive relief.

The Brothers ran, it is fair to say, every defence under the sun, however common sense prevailed and a clearly unimpressed Mr Justice Eady found no difficulty in deciding that such wholesale taking of password-protected documents regarding personal finances and even including legally privileged material, was simply not acceptable. The learned Judge ruled that without doubt there could be no defence to the injunctive relief sought debarring the brothers’ from transmitting the information onwards, and it was always open to them to seek preservation Orders to ensure that the information was not destroyed so as to ensure in due course justice was done in the family proceedings.

Family lawyers are well used to the odd bit of ‘accidentally’ opened mail being shown to them, but this was breathtaking in scale. I suspect that, sadly, a very bitter divorce is on the way!

When I was younger and started to go into family law, I still remember one of my best friends saying, “so, sleazy divorce lawyer it is ay?”. Now, I practice in all areas of family law, divorce as well as public and private law children, but just occasionally I do look at my career choice and wonder?!

The thing is that in this country, we thankfully haven’t quite gone the way of the US in having divorce lawyers as per the movies who are mini-celebrities in themselves.

As such my notice was attracted when I received “the lawyer” daily e-mail today as it described how Peter Andre has instructed a relative newcomer to the British divorce lawyer club to represent in him in his future publicity-fest. What was interesting was that the e-mail listed the ‘top’ british divorce lawyers, as follows:

Fiona Shackleton (of Payne Hicks Beach - and Shacka of Macca fame!)

Helen Ward (of Manches)

Mark Harper (of Withers)

Raymond Tooth (of Sears Tooth)

Maggie Rae & Liz Vernon (of Clintons)

Sandra Davis (of Mishcon de Reya)

and now … Stephen Foster (of Stewarts Law)

These names are indeed those lawyers dealing with the types of client that lend themselves to the ’sleazy divorce’ stories that one sees in the tabloids (and for the record I don’t think the above ‘good and great’ or indeed any divorce lawyers in the UK are ’sleazy lawyers’). However, the description of them as the ‘magic circle’ of divorce lawyers is one I would question.

Whilst the above are certainly superb lawyers, I would raise the other 99.9% of practitioners who deal with the small to medium cases which do not make the headlines. Actually, to my mind these lawyers are the true celebs as cases with ‘oodles’ of money are straightforward - trying to make non-existenet sums stretch is far more complicated (and emotionally challenging and heartbreaking), than deciding who gets the LA penthouse.

For close watch on the topic of Sharia law I defer to John Bolch who posts regularly. This article however was of particular interest because it reported that a Junior Minister recently suggested that whilst Sharia Law is not going to gain jurisdiction in the UK in family matters, it is always possible for agreements reached in Sharia courts to be submitted to English courts as consent orders. The Times article notes that the reporting of this possibility has been criticised and so it should be.

The difficulty lies in the very nature of consent orders which, whilst judicial acts, are ultimately the least safe exercise of judicial discretion. The reality of everyday court life is that when a proposed consent order is placed before the Judge, there is indeed a cursory check of the information before the court to ensure that the order is fair, however rarely is there any in-depth investigation and the court relies upon the truthfulness of the parties and the skill of the parties’ advisors.

The danger is that whilst agreements reached via a Sharia law ”mediation” (or indeed any other type of mediation) may appear superficially fair, such that they get approved by an English Judge; there may very well be different principles etc brought into play. There is a risk that women used to being subservient may well see a financial settlement as ‘fair’ yet without proper financial disclosure in a Sharia court the Husband is then free to put what he wishes in the English disclosure and all the Judge will see will be two parties in agreement. Likewise in relation to orders regarding children, those used to being subservient may well be subject to principles which might offend English law in reaching an agreement that, to an outsider, is not inherently wrong without investigation of the actual circumstances. 

The truth is that mediation other than under Sharia works because there is faith that mediators have remained neutral and ensured the parties truly consent and are not pressured. Sharia court mediations (let alone hearings) are implictly dangerous due to the different starting premises that apply (a woman’s role is in the home etc), and the position women often find themselves in whilst ending relationships (ostracised, used to being underdogs etc). 

Recognising anything to do with Sharia Law is inherently complicated and there is a great risk if the waters are muddied, as suggested by the Junior Minister, injustices will occur which, particularly in family law, could have devastaing consequences for the lives of those involved. The true difficulty is that unless the parties tell the Judge that Sharia was used he would be none the wiser.    

I see from the BBC website that Mr Justice Coleridge has weighed in to the debate on the changing nature of family life in the UK and the growing legal-aid crisis. The Western Circuit Family Division liaison judge was speaking at Resolutions’ annual conference in Brighton and appears to have given a headline-grabbing speech.

 Thanks to the BBC article and a Resolution News Briefing it is clear that this well-respected figure was not mincing his words.

Practitioners will be pleased to see Sir Pauls’ support for their current plight with him noting that, “the family justice system in this country has been and is being mismanaged and neglected by government”. Equally the Judge is reported as having urged policymakers to, “Stop chipping away at the family justice system and trying to have it on the cheap”.

Coleridge J also drew an ineresting comparison: “There has never been a greater need for the public to have access to a lawyer with speacialist family law and family justice experience than now. They are as vital a commodity in our national life as the local GP. Indeed their tasks are not dissimilar. When a family is going through crisis whether it be medical or psychological or legal, caused by family collapse, the first port of call is and should be the local GP if it is medical, and the local family lawyer, solicitor and barrister, if it is legal.”

Mr Justice Coleridges’ comments will be welcomed by practitioners who are rapidly being forced out of publicly funded family law owing to the growing cuts and an increasingly unprofitable sysyem which, though family lawyers may be committed to, other partners in mixed firms are not prepared to stomach.

The Judge also somewhat self-interestedly referred to the problems faced by the courts due to under-resourcing and the delays flowing from this. This will certainly be familiar to practitioners. Last week I tried to list a 5 day final care hearing and the earliest firm fixture was at the tail end of November - the system simply can not keep up, despite dedicated and expert judges and listing officers, and this is undoubtedly to the detriment of those resorting to the courts in their time of need.

The papers will probably however, attach rather less importance to these comments on the system, than on those made by Sir Paul alikening the threat from the growing number of family breakdowns to the dangers of climate change. The Judge urged the government to address the issue head-on and do something about it, mkaing it plain in the process that the current conservative plans are no answer either, “I am not talking about tinkering with tax rates for married couples. That is irrelevant and ineffectual window dressing”. The Judge also appears to ahve gone out of his way not to criticise single-parent families though we shall have to wait and see how his observations are portrayed in the press.

Finally the Judge urged a re-appraisal of of much current law including that relating to cohabitants, divorce and ancillary relief, noting that the social mores of the country today are totally different to those applicable when the applicable laws in those areas were last addressed.

Will the government act on any of the issues raised in this interesting speech? With the economy going south and the politcal race hotting up, family law - which is far more controversial than criminal law - is unlikely to be at the centre of any manifestos. Still, at least Sir Paul’s comments will add a welcome spotlight on the current mess - assuming that is, that the media give a fair representation of the Judge’s words.