“A fast car and an open road” – non-disclosers and adverse inferences

Today's blog comes from guestblogger Margaret Heathcote.  Follow Margaret on Twitter @Auntie_Ag

The “Scot Young Show” has returned to Mr Justice Moor’s court at the Royal Courts of Justice this week for its possible finale, the substantive hearing in a financial remedy application first made four years ago by his estranged wife, Michelle.  Such is the media and public interest in this long-running saga that reporting restrictions have been lifted.  No doubt we will read all about it in the coming days and weeks in the Metro on the way to work, or catch-up online over lunch.

The bare facts are not that unusual:  the Mr and Mrs Young (now aged 51 and 48, respectively) married in 1995.  They separated in 2006.  They have two daughters.  There appears to be no doubt that telecoms and property tycoon Mr Young was a man of (as it is always so nicely understated) “considerable wealth”, that wealth running to many, many millions of pounds.  By way of illustration, it is said he gave Mrs Young a £1 million Graff diamond ring for her 40^th birthday – by my calculation only a matter of months before they separated.   The court must have been reasonably confident that Mr Young had substantial resources as he was ordered to pay interim maintenance to his wife for her and their daughters’ of £27,500 per month – a whopping £330,000 net per year. 

 

Unfortunately for Mrs Young, her husband did not comply with this order.  He says that the days of mansions, yachts, and diamonds are now long gone and that almost immediately after he and Michelle separated, he lost all his money in a property venture in Moscow. 

I have not had the benefit (that it seems many legal practitioners in and around London have had) of seeing Mr Young’s Form E; but I would hazard a guess from what has been reported in the press that it paints a picture of a man with no assets at all, and probably considerable debts.  What is known is Mr Young has failed to produce the documentation that was ordered to produce to prove that his Form E account was true.  So dissatisfied was Mr Justice Moor with Mr Young’s conduct that he took the unusual step of committing him to prison for contempt.  It is rumoured that Mr Young came to court prepared to take the long walk, carrying his toothbrush and other essentials in a Louis Vuitton carry-on case.

Mrs Young, like so many ladies before her who have found themselves under the media spotlight in divorce proceedings, is always referred to as a “former model”.  She says that her husband’s pleas of poverty are a pack of lies, that he has spitefully pursued a deliberate and cynical campaign to hide his assets from her and the Court and that his failure to comply with the interim maintenance order has left her penniless, dependent on Housing Benefit and sharing a bed with her younger daughter.  Like Blanche Dubois before her, she has been forced to depend upon the kindness of strangers, or, in her case, good friends (such as Sir Philip Green) to make ends meet.

 

Undoubtedly her husband’s conduct of the financial remedy proceedings has left Mrs Young in a very different position than she was in at the time of their separation.  She has, perhaps understandably, left no stone unturned in trying to demonstrate her husband has been lying and is, in fact, well able to meet her financial claims, even if generously interpreted. 

We will see soon whether she has been successful, or if she will be forced to fall back upon the adverse inferences that Mr Justice Moor may very well draw from Mr Young’s conduct.  Media reports tell us that Michelle would apparently now be prepared to settle for a capital sum of £300 million. 

The last high profile divorce case in which the Court (and the media) took a comparable interest was that of Mr and Mrs Prest, culminating in the recent litigation between Mrs Prest and the Petrodel group of companies in the Supreme Court in June of this year. 

That case again concerned a long marriage between parties in their fifties, who had children together.  Mr Prest, like Mr Young, was a man of “considerable wealth” who maintained in the face of his wife’s claims on divorce that it was all smoke and mirrors, and that the fabulously wealthy lifestyle they had enjoyed (and which he still appeared to enjoy) was an illusion.  Cometh the hour, he said, he was in reality a man of very considerable debts if not actually of straw. 

Mrs Prest did not believe him, and nor did Mr Justice MacFarlane (as he then was).  Mrs Prest received an award of £17 million as against her husband’s wealth, estimated by the Judge to be in the region of £40 million. 

That decision was appealed, on the basis that the properties which Mr Prest was found by Mr Justice MacFarlane to effectively own (and, crucially, the sale of which was required to fund the award to Mrs Prest) were not in fact properties in which he was (in the words of the legislation) “entitled, either in possession or reversion”.  Rather, those properties belonged to a series of properly constituted and legitimate companies, which could not be subject to the Order made. 

 

The Court of Appeal agreed with Mr Prest and was fairly damning in its assessment of the workings of the Family Division of the High Court and its general lack of intellectual rigour. 

Mrs Prest appealed to the Supreme Court, which found a way of both agreeing with the Court of Appeal’s construction of the statute whilst also finding that Mrs Prest should receive her original award.  A “fudge” some would say; others, “justice in action”.  Accordingly, Mrs Prest should (with a good following wind) one day actually receive the award to which she was found to be entitled.

One may wonder why these (and other) men strive so very, very hard to deny their wives and children the financial security and support they enjoyed during their marriages.  Perhaps, however, one does not have to wonder for very long.

At the heart of this cohort of cases is the failure of (at least) one party to make full and frank disclosure of their financial assets and affairs, with a view to undermining the financial claims of the other.  Neither Messrs Prest or Young has (so far as I am aware) made any great fist at creating a convincing account of their financial collapse, but has rather adopted a stance as far as their wives and the Courts are concerned of:  “Here is my story; catch me [out] if you can!”

I am extremely indebted to the very distinguished panel of the recent London Region Resolution debate (speaking to the motion “The decision in Prest –v- Petrodel doesn’t change anything”) on 24 October 2013 comprising:  Jeremy Posnansky QC of Farrer & Co LLP (acting as solicitor for Mrs Prest) and Mr Stephen Trowell of 1 Hare Court (Junior Counsel for Mrs Prest), and Mr Tim Amos QC and Amy Kisser of QEB (Leading and Junior Counsel for the Petrodel Group of companies in the Supreme Court) for clarifying the facts of the latter case and (perhaps more importantly) bringing together from it lessons to be learned for the future.

All presentations were both enlightening and (essential for anything which has to hold an audience’s attention after work for more than five minutes at a time) entertaining; rather more so, I suspect, than they had been in the Supreme Court.  However, their grasp not only of their cases but of the niceties of the legal debate was illuminating.

For me, the lessons to take away were the following:

1.            The safest defence against a Court making adverse inferences in relation to the ownership of assets is to make full disclosure and to tell the truth. 

Well, I’ve given that advice over many years now, with varying measures of success.

2.            Absent full disclosure or truth telling, the Court can and will draw adverse inferences about the ownership of assets.

Yup, that happens! 

3.            Such adverse inferences will be drawn in favour of the more truthful or needy party (usually the wife).

Again, yup!

(And perhaps most importantly)

4.            The Court will, whenever possible, ensure that the interests of justice are served and will find a way to ensure that in the family courts at least, “shits lose”.

Well, that’s a relief!  Business as usual after all.

I would presume to predict that Mr Justice Moor is likely to draw adverse inferences from the failure of Mr Young to make full and frank disclosure of his financial resources, or to comply with that duty to the court in its discharge of an inquisitorial role in pursuing that disclosure.  I presume also to predict that it is likely that those adverse inferences will be drawn in Mrs Young’s favour. 

 

However, I would also presume to predict that, even if an award is in due course made in Mrs Young’s favour, there may still be (as there was for Mrs Prest) a long road ahead of her before she sees any money.

Surrogacy: What happens if you change your mind?

Last month, Wisconsin’s Supreme Court was called upon to decide whether surrogacy agreements were enforceable contracts there.

The case concerned a commissioning mother, Monica, who had entered into a surrogacy agreement with David and Marcia.  Monica agreed to carry a child for them, after being artificially inseminated with David’s sperm. 

Each party took legal advice and a written contract was prepared.  It provided that Monica’s parental rights would end on the child’s birth. 

Monica subsequently changed her mind, and litigation followed.  David sought an order for specific performance of the agreement – in short, requiring Monica to do what she had agreed to do.

David’s application initially failed.  The Judge decided the agreement was null and void.  This was because it did not comply with local requirements for the voluntary termination of Monica’s parental rights.

At a trial in 2011 to determine the child's best interests – he was by then three years old - a Judge ordered that Monica should have custody, but that David should have access.   That access was to be for six hours every other weekend for two years, and then for the whole of every other weekend after that.

David and Marcia appealed.

Monica tried to argue that the whole contract should be void because it went against public policy.  By majority decision, the Supreme Court disagreed. 

It found that the surrogacy contract must be considered in the judge's determination of custody and access, unless its terms were contrary to the child's best interests.  To that extent, the surrogacy agreement was an enforceable contract, save for the provision terminating Monica’s parental rights. 

Of Monica’s arguments to seek to avoid the contract, the court’s majority decision observed: 

"There are no facts in the record to indicate, nor does Monica argue, that the contract should be void or voidable due to misrepresentation, mistake, duress, undue influence or incapacity."

The majority Judgment (given by Justice Annette Ziegler) continued:

"Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life".

Chief Justice Shirley Abrahamson agreed the first instance Judge had erred by ignoring the contract.  However, she disagreed with the majority’s conclusion that such contracts should be enforced "unless contrary to the best interests the child."  She wrote:

"The majority opinion has no hesitancy in declaring that public policy supports the enforcement of such contracts. Yet the validity of surrogacy contracts, in whole or in part, is at this very time being debated across the globe."

The decision was especially significant, because Wisconsin has no statutes or case law that directly addresses enforceability of surrogacy arrangements.  The court called on the State government to take the lead in enacting legislation to regulate surrogacy and surrogacy agreements.

Back on this side of the globe, surrogacy agreements are not enforceable as contracts in the UK.  Commissioning parents who enter into a surrogacy arrangement may seek a Parental Order.  The effect of such an order is to transfer parent rights and entitlements from the surrogate mother (and any other legal parent, which may include her partner in some circumstances) to the commissioning parents.

But one of the prerequisites for a Parental Order is that the surrogate mother (and any other legal parent) gives consent freely and with full understanding of the process and its implication.  The consent must be unconditional.  The surrogate mother is entitled to change her mind, and consent given before the child is at least six weeks old is not valid. 

What happens here if the surrogate genuinely changes her mind?  This was an issue considered by our High Court in London about two years ago.  Mr Justice Baker had to settle arrangements for a baby girl.  She had been conceived following a surrogacy arrangement.  The surrogate mother changed her mind when the child was seven days old, and wished to keep the child.

The Judge decided that the baby should continue to live with the surrogate mother and have contact – which she had already been having – with the commissioning father.  That, the Judge determined, was the arrangement that was in her best interests, and the only issue the court had to resolve.  Putting the enquiry in another way, in which home was she more likely to mature into a happy and balanced adult and to achieve her fullest potential as a human? 

Ultimately, the Judge reached his conclusion based on his assessment of the capacities of the various adults to meet the child’s needs.  He decided that to remove the child from the surrogate mother would cause emotional harm.  The Judge believed the commissioning father lacked insight into the importance of the child’s relationship with her. 

Of the change of heart by the surrogate mother, Mr Justice Baker observed that in some cases a promise to give up the baby might indicate a lack of commitment to the child, calling into question the mother’s capacity to care.  However, in the circumstances of this case, the court should not attach undue weight to the surrogate mother’s original promise to give up the baby.

Statistically, changes of heart by the surrogate or commissioning parents are rare.  Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.  

 

What the Wisconsin case and the decision of Mr Justice Baker here in England each demonstrate is the need, in that small cohort of cases where the arrangement breaks down, for urgent legal advice from an expert in surrogacy.  

Marriage: the costs of entry and exit, and how a good lawyer represents value for money

Today's blog comes from guestblogger Margaret Heathcote.  Follow Margaret on Twitter @Auntie_Ag

Marriages is very “in” at the moment.  Most of you will know of someone who has recently married, or is about to do so.  You will also know of someone who has had a ludicrously elaborate, and no doubt expensive, stag or hen night / weekend / week (although an examination of that strange phenomenon must wait for another day).

According to www.weddingbelles.com, the average cost of a wedding in the UK (inclusive of honeymoon) in 2013 is expected to be over £16,000.

The magnitude of that is staggering - £16,000 represents (among other things):

·                     a 10% deposit on a property costing £160,000 (the average UK house costing just over £163,000 according to the Halifax House Price Index in December 2012)

·                     the cost of a new Mini One Hatchback

·                     more than the cost of an LPC course at the College of Law (now the University of Law – what’s all that about?), and

·                     more than 50 hours of a solicitor’s time charged at £250 per hour, inclusive of VAT.

However, the government does not legislate for how much people can spend on their weddings – it is an entirely personal choice, and (coincidentally) very lucrative for those in the business.  According to Hitched, the UK wedding industry was worth about £10 billion in 2012.

 

It is infinitely easier for most people (this is neither the time nor place to unpack the crooked path that will finally next year lead to a degree of marriage equality) to get married than to get divorced.  However, if you look at the issue of divorce through the reductionist lenses that government Ministers seem to have surgically fitted, it would appear significantly cheaper to get divorced than married. 

A solicitor in central London will charge between £750 and £1,000 plus VAT to advise on and process an undefended divorce petition.  For that fee, they will: 

·                     take instructions on the particulars of the ground of the Petition;

·                     incorporate those into the paperwork;

·                     draft a Statement of Arrangements in relation to any children;

·                     arrange for the Petition to be issued and served on the other party

·                     on receipt of an acknowledgement of Service, prepare an application for decree nisi;

·                     lodge that with the Court;

·                     in due course apply for decree nisi, and

·                     (ultimately) apply for decree absolute. 

The process is not difficult, but it is vital it is completed correctly. 

 

The Court will charge a fee of £410 to issue the petition, an administrative process which takes (at most) ten minutes of a Clerical Officer’s time.  Let us assume that for that fee the Court also processes the acknowledgement of service (about ten minutes work), the application for decree nisi (ten minutes) and the District Judge’s certificate (another ten minutes).  That’s a total of around 40 minutes work by a civil servant with an -ology or two for £410; equating to an hourly rate of £512.50 per hour excluding VAT – not bad work if you can get it! 

The Court will then charge a further fee of £45 to process an application for decree absolute – again, ten minutes work at most, equating to an hourly rate of £225 per hour (excluding VAT).  As above, a pretty nice way to make a living.  It is no small irony that it costs the same to register a marriage.

In case readers assume that these fees are pocketed by the Court staff, let me address that now:  administrative Court staff are paid nothing comparable to this.  Their salaries are, in fact pitiful, starting at about £12,000 gross per annum (although in London there is some London Weighting applied), or around £6.50 an hour.

When we read in the press of the “quickie divorce” (an expression that makes me cringe), we are of course reading about the dissolution of a couple’s marriage or, more accurately, pronouncement of decree nisi only.  We were told that Nigella Lawson’s marriage was dissolved in 70 seconds.  A District Judge of my acquaintance told me that her own personal record for pronouncement of decrees nisi for the day was 48 seconds.  So it’s quicker than getting married, too.

 

Hey presto!  The couple are divorced.  Easy peasy…

For most people, however, there are other issues to be resolved alongside the divorce itself that arise in the context of marriage breakdown:  financial matters and / or arrangements for children.  In respect of both, the government would like to compel people to resolve these through mediation.  The government’s attitude appears to be that divorcing couples must stop jamming up the (very costly) Courts with their time consuming and petty squabbles.  Petty to the government, perhaps, but not to those whose lives they affect.    

Funnily enough, most family lawyers (and certainly those who, like me, are members of Resolution) encourage their clients to resolve matters by agreement (whether through mediation or otherwise) rather than litigate at huge expense (both emotional and economic).  But for some, solutions outside of the court process are just not achievable.  An independent referee whose decision is binding – in other words, a Judge – is needed.

For every stubborn client who holds out on a financial agreement as a matter of principle (if I had a penny for every time….), there are at least as many others who cannot agree to what is proposed because they it is insufficient to support themselves or their children.  They need a Judge to apply the law and require their partner to make financial provision at a level that is both fair and reasonable, precisely because that partner is not inclined to be either of those things. 

 

Likewise, for every awkward parent who refuses to allow Little Tarquin to be collected by his father at 3:45pm rather than 3:30pm (God give me strength, but these arguments still arise), there are as many others who would not be seeing Little Tarquin at all if it were not for the ability of a family Judge to compel the recalcitrant parent. 

People are not always reasonable when it comes to divorce.  It is rarely possible for them to deal with the breakdown of their relationship with unemotional robotic detachment.  Even politicians and / or their partners have been known to act a little bizarrely at such times (remember the MP’s wife creeping into his mistress’s garden and stealing her cat?), and the process of achieving a separation is not simply the relatively simple administrative divorce process described above.  Advising people in respect of these issues requires training and experience.  It is a service that the public at large want to be able to access.  It is a service they value when they need it.

Research shows that 83% of people contemplating divorce think that they need the assistance of a solicitor.   Most of those people would be able, with some simple guidance (www.divorceeasily.co.uk is an excellent new package that provides just this) to achieve a decree absolute without a lawyer being involved.  However, very few would be able to negotiate the complexities of a financial dispute or serious issue in relation to their children without consulting a solicitor at some point.    

Legal advice on divorce is a crisis purchase.  Unlike a wedding, it is difficult to fund through borrowing.  However, like most crises, it is something which can be mitigated by seeking the help of an expert in crisis management.  Whether the government likes to acknowledge it or not, lawyers remain the recognised and trusted experts in divorce crisis management. 

Twin Track Family Justice - can money and influence buy an effective service?

This blog is written by my colleague (and guest blogger), Margaret Heathcote.  Margaret has many years of experience in dealing with matrimonial issues, having worked in the Court Service at the Principal Registry of the Family Division before joining the profession in 1996.  She specialises in all areas of private family law, and particularly in advising in relation to complex matrimonial finance issues, often with an international element.

So, decree nisi (the so-called “quickie divorce” so beloved of the tabloids) has been pronounced in Nigella Lawson’s and Charles Saatchi’s divorce proceedings.

It is unsurprising that these are the sort of family proceedings in which the media show an interest.  Doubtless if, as seems unlikely, there is to be a financial dispute between the two wealthy parties, the media will show an interest in that too. 

For it is a truth universally acknowledged that if a rich couple divorce and have a scrap over the money (or, better still, their children), then the public will delight in reading of their pain.

What interests me, however, as a practitioner in this case is the almost uncanny speed with which the “quickie divorce” was achieved.

The chronology as I understand it is this:

·                   on Sunday 16 June, photographs appeared in the Sunday People of Miss Lawson and Mr Saatchi outside Scott’s Restaurant, apparently mid-row, with Saatchi’s hands around Lawson’s throat;

·                   during the following week Miss Lawson left their home, and rented a flat in Mayfair;

·                   on Friday  21 June, Mr Saatchi accepted a Police Caution in respect of his assault on Miss Lawson;

·                   on 7 July, Mr Saatchi announced via the Daily Mail that he intended to divorce Miss Lawson;

·                   early the following week, Miss Lawson instructed Fiona Shackleton to represent her, and

·                   on 31 July decree nisi is pronounced.

At this point, I’m obliged to make a couple of assumptions: first, that Baroness Shackleton was instructed before 7 July, and therefore had the documentation ready to issue a Petition promptly after Mr Saatchi’s announcement; second, that she was able to persuade Mr Saatchi to do the decent thing and be the Respondent to Miss Lawson’s Petition. 

Let us proceed on the basis this is correct.  What must have followed was the issue of a divorce Petition out of the Principal Registry of the Family Division citing section 1(2)(b) Matrimonial Causes Act 1973, viz. that the marriage had broken down irretrievably by reason of Mr Saatchi’s unreasonable behaviour.

 

The current turnaround time for the issuing and despatch of such a Petition is around 10 days, even if the Petition is served by the issuing solicitor.  I was recently refused permission to abridge this process even though there was a potential jurisdiction dispute.  I can only presume that Baroness Shackelton was more persuasive, and was able to persuade a Judge (although not the District Judge of the Day, for this role has been all but abolished) that this was an urgent case that ought to leapfrog other work.

The issued Petition would then have been served on Mr Saatchi.  Let us assume (once again) that he completed his Acknowledgement of Service promptly and returned this to his wife’s solicitor, and to the Court.  Let us assume that the Court did not lose any of this documentation, which happens with depressing frequency nowadays.  An application by Miss Lawson for decree nisi could then have been prepared and lodged with the Court.

Looking to my most recent experience, an application for decree nisi in an uncontested case made in mid-April resulted in a District Judge’s certificate confirming entitlement to a decree in mid-May.  The date for pronouncement of decree nisi was in mid-June.

Yes, that’s two months from application for to pronouncement of decree nisi.  The Petition, incidentally was issued in February, but the Respondent was less co-operative in that case than it would appear Mr Saatchi was.

In Ms Lawson’s case, decree nisi has been obtained in a very much shorter time, namely from about 12 July (the Friday following Mr Saatchi’s announcement that he intended to petition for divorce, allowing that week for Miss Lawson’s solicitor to issue, serve, receive an acknowledgement and then apply for decree nisi) to 31 July –some 19 days.

This is commendably swift, and must provide a degree of relief to the parties involved.  It would be in the interests of many of the users of the Principal Registry if they received similarly swift attention to their Petitions, even if their lives are not as glamorous or newsworthy as this couple’s.

 

I can only conclude that either Baroness Shackelton is able to accelerate the administration of proceedings through her undoubted dynamism or commitment to her clients, or that the element of celebrity in this case had an overwhelming effect upon the speed with which the wheels of justice turned.

With no disrespect intended to Baroness Shackleton, I rather suspect the latter…

In the present circumstances, where the Family Court Service is in crisis, where Legal Aid has been all but abolished for the majority of family cases and where practitioners despair of communicating with the Principal Registry, whether by letter, e-mail, fax, telephone call or even personal attendance, it is impressive to see what can be done when the stops are pulled out to accommodate the famous. 

It is a pity that it would appear that there is one standard of family justice emerging for the rich and influential, and another lesser standard for the rest.