Your family law lawyer For most of us divorce/relationship breakdown is pretty upsetting. Depending on the scenario, there are feelings of guilt, revenge, anger, remorse; but also regret, sadness, past memories, as well as a sense of dislocation and disorientation. Types of family law lawyers Of the choices you make as a result of the breakdown of your marriage, among the most important is your choice of lawyer. At first instance you need to understand the different sorts of lawyer. You will generally only see a barrister once you have instructed a firm of solicitors. This is usually, though not always, at Court hearings. Solicitors have many years of legal training. A firm of solicitors is usually made up of solicitors who are partners; and lawyers who are not partners, be they solicitors, legal executives or paralegals. Solicitors usually charge more than legal executives, legal executives more than paralegals. Legal executives are legally trained but not to the extent or to an academic level of that of a solicitor. That is not to deny that many of them are very good at their job. Paralegals are generally unqualified and are most frequently used in firms which base their practice on legal aid. There are exceptions but by and large they should be avoided. Finding the right lawyer Shopping around for the cheapest quote is misguided in this area of the law, particularly if matters are complex or highly charged. You need someone who you know is technically competent and with whom you feel you could have a good rapport. Thirty or forty years ago family lawyers used to be part of the litigation or contentious department, which would have included criminal lawyers and lawyers who sue people. But there has been a very significant shift in the perception of lawyers dealing with this area of the law, and to a lesser extent their clients. Even if your spouse has been absolutely vile and you feel very angry and betrayed -- please step back and ask yourself whether you really want to ditch all the good memories and engage in a bloodbath. Indeed, many would say that it is your obligation as a parent, if you have children, to make sure that your feelings, however strong, do not ruin your children's lives. Even if they are grown up, do not force them to take sides. There is a professional body of family law solicitors who have a code of conduct aimed at reaching settlement without emotional casualties. It is called Resolution. Generally speaking, unless someone is a member of Resolution, stay clear. They are either not specialists, or are of the old school "shoot to kill". Should you have a male or female solicitor? Frankly I think it makes little difference. However, I do believe there are certain sorts of lawyers to avoid. One category is a young lawyer, probably under 30, who has not been in a serious relationship. These are too likely to overempathise and overdramatise and not to understand the family dynamic. They are likely to be oversimplistic and not to have the understanding necessary for satisfactory negotiations. They may be technically competent. There are exceptions. But unless your case is straightforward you are probably better off with someone a bit older. The second is an experienced (older) solicitor or legal executive who appears excessively aggressive or assertive. The position will be presented in terms of winning, losing, optimising the result etc. Sometimes such a stance is justified - but not normally. Lawyers of this ilk can couple expertise with jaundice and introduce an entirely unnecessary element of bitterness. Also do not give in to the attraction of a solicitor who dominates you. The solicitor should be firm and give clear advice. But you are the dog, not the tail. On the other hand you do not wish a lawyer who seems weak. If necessary, you need someone who can be the iron fist in the velvet glove. Beware a solicitor, particularly if young and inexperienced, who does not give immediate, firm advice. First, the advice given by such a solicitor may well be wrong. Secondly, that solicitor is likely to be dominated by a more experienced "opponent" acting for the other spouse. Above all, more than in any other area of the law, a feeling of liking your solicitor and getting on is very important. The best course to follow is an enthusiastic recommendation from someone you know, like and respect. Otherwise you need to balance up the individual firms and lawyers in your area. Other things being equal and unless your case is exceptionally complicated a local solicitor is preferable. Bear in mind that the more complicated your case, the more competent the lawyer needs to be. The more emotional the breakdown, the more experienced needs to be the lawyer dealing with the implications of that. Many cases are exhausting (for the client and to a lesser extent the solicitor) and will take a long time. Many solicitors will offer a free half hour of advice. However most feel uncomfortable about it. In most areas of the law the legal problem will be clearly defined and the solicitor will be able to give a clearcut answer, based on legal principles. However, family law is just the opposite. The client is likely to be upset, and often inarticulate. Often the client takes in little of what the solicitor has to say. Often the case is far too complicated to deal with in the time frame. Often the situation is changing daily. The initial interview is often the most difficult for the solicitor as he needs to elicit a large amount of information, to gauge the atmosphere and to advise within a restricted period of time. The process of resolving the problems arising out of a relationship breakdown is complicated and often progresses against a backcloth of high emotion. I am more comfortable, certainly in the early stages, if the client brings along a friend to take notes and provide feedback after a meeting. Although there is no hard and fast rule, bringing a relative is not generally a good idea. If you are considering seeing more than one lawyer at the beginning of your case to decide which one you prefer, be careful. It is a sensible thing to do, at one level. However, just as a consultant doctor would be unhappy about a patient seeking a second opinion, so a solicitor might resent the client who indulged in a "beauty parade" of solicitors. We are busy. Naturally we wish to have new clients. However, our overwhelming priority is dealing with the needs of existing clients. Another major problem is thinking that family law is like conveyancing and one should go for the cheapest quote. If someone phones me I will give them an hourly rate -but- a family solicitor has to know not only the law, but also feel the clients emotional framework and to be able to negotiate with skill without causing the couple to have any more bad feeling towards one another than is absolutely necessary. Choosing the wrong solicitor can have very serious consequences, such as unnecessarily forcing the children to take sides. The right solicitor on the other hand should be able to negotiate a fair and advantageous settlement while reducing acrimony to a minimum. Paying the bill A solicitor's costs are likely to be considerable. Legal aid funding is available in fewer and fewer cases and there are many people in the middle income bracket who will struggle to pay the costs. It is also of vital importance that funding is sorted out. It is so important to budget. If a solicitor feels that his bill is not going to be paid promptly then in many, indeed most, cases the trust between the solicitor and client breaks down. In many cases, there will be initial costs and then things will calm down a bit before a period of intense activity. If the client has been a bad payer at the early stages then the solicitor's anxiety that his future bills will be met is likely to undermine, and in many cases undermine very seriously indeed, the relationship between the solicitor and the client. Sometimes matters will be simple and straightforward. However, in most cases there are complications which may result in a bill which is larger than expected or estimated. Most solicitors provide a pretty detailed bill but if you are concerned you may ask for a breakdown. But if you are struggling to pay, do not forget that although the solicitor expects to be paid, providing he is given security that his bill will be paid, you are his top priority. It is important to be able to talk openly with your solicitor about costs. Your relationship with your Solicitor If you are unhappy about your solicitor then talk things through. Sometimes it is a particularly fraught period, and the relationship can be restored. However, once the element of trust is eroded it is often better to change solicitor. The downside is that it is expensive to change solicitor. You will be expected to pay your present solicitor's outstanding bills upfront before they will be prepared to release your file to a new firm. The new solicitor is likely to charge for what is called "reading in time", to acquaint himself with the file. There used to be an old saying "Do as you would be done by". If you treat your lawyer with respect then the mutual respect should produce good rapport. For example, there are often embarrassing matters which will occur. Do not hide them from your solicitor or he will not understand why the emotional atmosphere has changed, all of a sudden. Perhaps one person has a new partner. Perhaps there was a disagreement concerning a particular contact visit with the children Above all, communicate with your solicitor. His attitude is likely to be significantly less confrontational than yours. Sometimes the opposite is true. But when things get tough, talk them through. Any issues on either side need to be ventilated. However, if you (or he) are still not happy about the position then it may be time for a parting of the ways. Three last points. First, more than half family lawyers are female so that my reference to he when referring to the solicitor is sexist! Seriously, is it not about time that we had a gender neutral method of referring to another human being? Secondly, when I make reference to a solicitor, I am also including a legal executive or paralegal. Many legal executives are very good and can be more streetwise than solicitors. As an aside I am unhappy about paralegals. You should avoid them. Finally, your solicitor is going to be your key to resolving matters, in many ways helping you to close a chapter. It is a very important relationship, during a particularly stressful period in your life. Make sure you choose the right one! SOLICITOR OPPORTUNITY Arnotts are seeking an ambitious non contentious solicitor to share premises and facilities. Flexible about arrangements. If the glove might fit then please contact john@arnottslaw.co.uk or phone 0844 372 1333. THOUGHTS ON THE INSTITUTION OF MARRIAGE ARISE LASURUS A few years ago it was fashionable to predict the end of the institution of marriage. However, perhaps it has been awakened from the dead. In this field of social/family statistics, the figures are incredibly difficult to verify in this area or to interpret. You read something and then ask “How did they know that. What does it mean?” Let us take the statistic that 40% of marriages end in divorce. 20 years ago 90% of marriages involved couples, neither of whom had been married before. The figure is now down to about 67%. So, there are a lot of people who are entering 2nd and 3rd marriages. I recall a statistic that 55% of those who get married, where one or both of them have been married before, will end in divorce and the figure rises to 65% for those where one partner has been married twice before. If one considers that the chances of one of a couple dying during the marriage should increase on second or third marriages, that makes the statistical likelihood of such marriages ending in divorce even more significant. What does this mean? Well, first that there are people who are emotionally attracted to the institution of marriage but have been unsuccessful in getting what they had hoped from their marriage. Why? I do not know. I just know they skew the statistics. Let us look at the % of first marriages which will end in divorce. That appears to be going down. I suggest that it is now only 25 – 30%, which means if a couple marry, neither of whom has married previously, that there is an almost ¾ chance that the marriage will last its course. That is pretty upbeat. MARRIAGE IS GOOD FOR CHILDREN I was amazed by a statistic I read recently. I have not had it independently verified. The statistic is that married couples are 10x more likely to stay together until their child is 16 than an unmarried couple. If they did not live together before the marriage the difference between a married couple and a cohabiting couple is even more pronounced. What does it mean? Some of the difference could be explained by the large number of marriages from the Indian subcontinent, which have a history of stable, although not necessarily happy, marriages. Also, people who live in small communities and have simple lives, or people who are intrinsically stable, are probably more likely to marry than the norm. However, one cannot explain the startling statistic in any other way than that marriage of itself creates inter-partner and family stability. All things being equal, there is something intrinsically stabilising about the institution of marriage. It is for this reason that marriage should be encouraged, if necessary in the tax system. However, the flip side is that that step would appear to suggest that single parents or those in cohabiting relationships are in some ways deficient. On an individual basis that is an invidious conclusion, but overall it appears statistically justified. It is a balancing act and very difficult politically. There is no doubt though that in the late 20th century the quest for individual freedom and the belief that the pursuit of self actualisation was the primary goal in life led to a society which increasingly was neither cohesive nor functional. It would appear that the chances of a successful marriage first time around are increasing. It would also appear that children born of these marriages are going to have the best chance of being in a stable family unit. There also now seems to be the political will amongst the Conservatives to encourage marriage. In summary, marriage is likely to make a resurgence this decade, as is the fostering of family stability. NEWS: journalists wishing to arrange an editorial interview with Arnotts should email us via enquiries@arnottslaw.co.uk MARRIAGE AND THE FAMILY AN INCREASINGLY DYSFUNCTIONAL LEGAL FRAMEWORK A number of lines of thought I had this week (early January 2010) dovetailed into a reflection on the nature of the family in modern Britain, and how the law is lagging dangerously behind this changing nature of the family unit and its role in society. First, in early January 2010 there was the programme on the history of the family in post war Britain. Secondly, David Cameron and the Conservatives are still uncertain how to approach the question of the relationship between marriage and the family. Thirdly, it is becoming apparent that no party is prepared to tackle the thorny issue of the reform of the law of cohabitation. Fourthly, when telephoning me for appointments after Christmas, two enquirers referred to their spouses not as husband or wife but as “my partner”. Fifthly the previous Archbishop of Canterbury, George Carey, asked for immigration control, with preference being given to Christian immigrants. Finally, some fresh statistics have been issued by the Office of National Statistics. One of the statistics was that in 2007 there were 231,500 marriages in England and Wales, and 128,500 divorces. They say that 40% of marriages will end in divorce. Certainly both the number of marriages celebrated in this country and the number of divorces have both been decreasing. However, the rate of marriage is falling at a faster rate than the rate of divorce. People are getting married later. More and more people who have been divorced are getting married again. In the 60’s 90% of those marrying were marrying for the first time. Now the figure is less than 70%. More people are living alone. More people are living in committed relationships outside marriage. The number of children born to white English parents is continuing to drop but this is compensated by higher birth rates among other ethnic groups. Children are getting married later and leaving home later. Then there are more and more people who are getting married abroad. Against that, for many wives with an international background, usually wealthy, England in general and London in particular is seen as the place internationally where wives will obtain the most advantageous divorce settlements. Certain ethnic groups have a very high rate of marriage and a very low rate of divorce – those from the Indian subcontinent and East Europe fall into this category. Ever since the dramatic changes in the divorce laws in 1967 – 1973 politicians have steered well clear of trying to review the law relating to the family. Indeed, with exceptions, successive Governments have avoided even attempting to consider the broader aspect of the role of family in society, and the advantages of marriage to the family unit. This is particularly the case after the then Lord Chancellor, Lord Mackay, tried to push through what ended up as a real dog’s dinner of a bill reforming the law of divorce, which contributed to the decisive defeat of the Conservatives in the late 90’s. The result has been that changes in divorce law have been enacted not by the Government or by Parliament but by judges -- and without consultation and without any input from the electorate. These changes, which have been paternalistic, have very often reflected a value system significantly out of step with the beliefs of the majority of the population. The law relating to cohabiting couples is archaic, absurdly complicated and scandalously unfair. It is not a regime of law which should be acceptable in a civilised society. A country’s law relating to the family should reflect the values of that country. The trouble is that there is no common consensus anymore. So many different communities have radically different values. There are groups in society with very strong family values. There are other groups where the traditional concept of the family has almost disappeared altogether, with the father figure having almost vanished. Then there are the majority who drift in and out of divorce, cohabitation and looser arrangements -- with the children left in their wake having more and more complicated histories. We could see a Government which tries to impose its vision of the family within society. It would have to be a Government with a large majority and a vision of blinkered inflexibility. I hope though that what will evolve is a recognition of the freedom of adults to make their own arrangements, subject principally to the importance of the nurturing and protection of our children. DIVORCE AND THE RECESSION Hard times, most often financial, are relationship pressure cookers. Seemingly innocuous problems or those which are conveniently ignored or glossed over during the good times grow larger, as if under a microscope. The pressure causes stresses in the structure and tectonic emotional upheavals. This is the third downturn during my professional career, and I particularly remember the last one, which started in the late 80’s and in many ways continued until the mid 90’s. This one though is more of a service industry/middle class recession. The days of easy credit are coming home to roost, with a vengeance. Credit cards are up to their limit and money cannot be found to pay even the minimum payment. Unemployment is rising and is predicted to rise to 3 ¼ million next year. Then there is also its covert sister, underemployment—reduced hours and reduced pay. Small financial dishonesties which exist in many marriages, the odd flutter, the illicit hidden sale purchase at the back of the wardrobe, take on a heightened significance in this current climate, causing arguments about selfishness and breach of trust. Rifts start to open up because of disagreements as to the areas of belt tightening. Holidays are cancelled. The husband cannot go out with his mates. The wife cannot head off for a session of retail therapy. Despite beseeching eyes and bended knee entreaties the children have to go without the latest electronic must have. Debt starts to spiral. Creditors sell off their debts to unscrupulous factoring agencies who intimidate, harass and stretch the law. The spectre of negative equity leaves a gnawing fear. Possession proceedings. Repossessions. Bankruptcy and insolvency. Small businesses going down the tube. Divorce and relationship breakdown increases significantly as the economy worsens. If I could give one piece of advice it is this—if your relationship/marriage was not perfect in the good times but was OK (like most of us), it will be put under pressure during hard times; for some, a great deal more pressure; and for the unfortunate few the pressure will be unbearable. However, the pressures are principally external, not from within the relationship. Realise that. Hunker down. Batten down the hatches. Close the drawbridge. And promise to put things on hold until the economy re-emerges from bust to boom. Only then re-examine the landscape. The emotional trauma of divorce is so much worse in hard times. An agreement may be reached to sell the home. A sense of relief. Then no buyer can be found for months, or even years. Credit is available in good times to pay the legal fees. Maybe the solicitor will not expect payment until the house is sold. Hard times--and money is required upfront. Credit is easiest to get when one least needs it, and hardest to obtain when times are desperate. That “friendly bank” will now look at you disdainfully and cynically with cold and cruel eyes. If the house is sold, or if one partner moves out (usually the man) then in good times the man can reenter the property market by taking out a big mortage and buying a second property. Bad times. No mortgage. Financial pressure. Time for bedsitter land. It can be grim, very grim. And often, if it could have been realised that the reasons for problems in the relationship shifting from normal to critical were external, the relationship could have been saved; or at least re-examined in the cold light of day, when the economy gets back to normal, rather than in these dark days of recession. So—step back. Seek help. See a debt counsellor rather than blaming one another. Accept that in any relationship the wheel turns. Don’t burn your bridges unless you are absolutely sure that the relationship is irredeemably and irrevocably finished and simply cannot be saved.