The myth of “common law marriage”

– Equity’s role in providing redress

According to the Office for National Statistics, the number of opposite-sex cohabiting couples in 2013 was almost double the figures from 1996.   In relation to opposite-sex cohabitation, the statistics do appear to confirm a substantive shift away from marriage.  For same-sex cohabiting couples, the increase over the same period is believed to be in excess of 400% (even allowing for the introduction of civil partnership in 2006.)

In a recent, 58% of the respondents thought co-habiting couples who live together for some time “probably or definitely” had a “common law marriage” which gave them the same legal rights as married [or civil registered] couples.  This is despite extensive media coverage across a variety of platforms stressing that cohabitation, regardless of its circumstances and length, does not bring with it a general protected legal status.  The Ministry of Justice has even funded a “Living Together” campaign to address this common misconception seeking to make cohabitants more aware of their legal status (or more accurately their lack of legal status) and how to protect themselves.

In the 2011 census, 10% of adults indicated that they were cohabiting – many are likely to be doing so without realising the full consequences of their position.

While MPs, the Law Commission, senior members of the judiciary and family lawyers may strenuously argue the point (both for and against a change in the law), the fact remains that for those increasing numbers of cohabitees (whether opposite or same sex) there remains no legal recognition of their relationship and therefore, no guaranteed or even presumed rights to ownership of each other’s property when that relationship breaks downs.  Nor is there any statutory guidance regarding the division of assets in these circumstances (compared to on divorce or dissolution of a registered partnership).

It is possible for cohabiting partners to contemplate (however painful it might be to do so) the possible breakdown of their relationship and agree for themselves the ownership of their joint home.  However, in the absence of this foresight, when, on relationship breakdown, property disputes escalate into litigation, cohabitees are reliant on the courts making orders based on legal rules arising from Equity.  There is some perception that, given the current social environment, a more sympathetic judicial approach might be evolving when it comes to the assessment of the property rights of co-habiting partners.  However, as one Supreme Court justice highlighted “the absence of legislative intervention [makes] it necessary for the judiciary to respond by adapting old principles to new situations…..not an easy task.”  However, as another member of the judiciary has also said, “[judges have to] ignore human sympathies and apply the law”.

So how does the judiciary approach these disputes between cohabitees?  What is the law that guides their decision making? They look to Equity’s most recognisable creation, the trust.

 A trust gives rise to a split in the ownership of the property forming the subject matter of the trust.  This split relates to the separation between the “legal” interest in the property – the public face of ownership, associated with the responsibility to manage and control that property – and the “beneficial” interest of the property – those who are actually to benefit from the property (i.e. have a right to occupy, a right to the sale proceeds and/or rental income).  The holder(s) of the legal interest are the trustees while those with the beneficial interest are, unsurprisingly, called the beneficiaries.  The trustees are under a duty to look after the property for the benefit of those beneficiaries. It should, however, be noted that having a “beneficial” interest in the property does not necessarily mean that those beneficiaries have equal interests in that property.

For cohabitees, this trust structure can mean different things depending on the circumstances relating to the “legal” ownership of the property:-

• It is possible for cohabitees to buy property together and for both to be named as the legal owners.  While they are joint, “legal” owners, they may also be beneficial owners of the property.  In the absence of any contrary evidence (i.e. an express written statement by the beneficiaries), there is a presumption in law that the beneficial interests are to be shared equally.  However, it may be the case that, in the circumstances, one beneficiary will have (or believe that they are entitled to) a larger share. 

• It is also possible for only one cohabitee to be named as the sole legal owner.  While there may be a very sound reason for this to have occurred and the sole legal owner may be very clear that he/she has legal ownership for the benefit of both cohabitees (again by way of written document expressly stating this),  it is also a scenario which can give rise to significant dispute. The presumption here is that the beneficial interest mirrors the legal interest – there is no presumption of joint beneficial ownership – and one cohabitee (the one without the legal interest) will find him/herself having to provide sufficient evidence for a judge that a trust actually does exist and they are entitled to some kind of beneficial interest.

As there is no legislation to guide the court, it is equitable principles established in case law that will determine the circumstances and evidence that the court will be looking for to see if a beneficiary is entitled to a larger beneficial interest or is entitled to a beneficial interest at all.

An important consideration to remember is that if the cohabitees agree for themselves the nature of the beneficial interests in their joint home and then documented this in a written deed, the court is unlikely to look beyond this agreement (unless there is a clear error or undue influence). However, more often than not, cohabitees, in the initial glow of their relationship, look at sorting out legal issues as unromantic and there is no agreement to provide clarity and stress-free resolution.

When the court is asked to make a decision, they will be forced to interpret evidence to see if they can identify the intention of the parties in relation to the ownership of the” joint” home.

So what will the court be looking for?

Before the property was bought (or at some time later in the relationship), is there evidence of a common understanding or agreement that the property was to be shared.  Direct financial contributions in relation to the property (i.e. direct payments to the purchase, taking on the burden of/paying off a mortgage, monetarily contributing to an extension) would be a good indication of such an understanding, even if there was no explicit discussions between the parties.  These financial contributions can be taken into account in determining whether a trust exists at all (and the property is therefore shared beneficially) and/or determining the size of any beneficial interest.

Historically, direct financial contributions have been the only indicators that a court would consider to decide these arguments.  Currently, direct financial contributions are, to a certain extent, still the primary considerations in determining whether the parties did have an intention to share ownership of the property, that a trust of the joint home existed notwithstanding that the “legal” interest is only registered in one of the parties (although the court will look closely as to why the legal interest is not in the name of both). 

However, these financial contributions are not the critical factors they once were, especially in determining the size of each beneficiary’s share.  More recently, the court may arrive at its decision by taking a more “holistic” look at the parties’ conduct in relation to the property (rather than the relationship itself) during their period of ownership to determine what the parties intended in relation to the property.  In the absence of any intention being evidenced, the court will look to the parties’ “whole course of dealing” to determine what it considers fair.  The length of time that the parties have co-habited is not necessarily relevant.  However, while financial contributions will still be relevant, now courts will also take into account things such as the advice given to the parties at the time of purchase (or a re-mortgage), the purpose for which the property was acquired, the financial arrangements of the parties, how the parties discharged the property outgoings (i.e. council tax, utilities, repairs, insurance).

As with any court proceedings, the courts will have to rely on evidence to enable them to understand the situation.  Given that “context is everything”, each dispute will turn and be decided on its own facts.   It is to be anticipated that the parties will be called upon to give oral evidence (and should be prepared to do so).  Given the strong feelings that these disputes often arouse and the impact that this can have on oral evidence, courts are likely to place more weight on documents where they are available – a conveyancing file from the time of purchase (or any re-mortgage), bank statements and other financial documents from both before and after the property was bought.

For the foreseeable future, cohabiting couples are likely to remain without guaranteed rights of ownership of each other’s, or what is thought to be joint, property on relationship breakdown.  It is open to couples to regulate their relationship in legal terms should they wish to.  However, what couples must recognise is that if they do not elect to establish their rights for themselves, the mythical concept of ”common law marriage” will not safeguard them.  Upon relationship breakdown, they will be looking to time-honoured equitable principles and the concept a trust for assistance.

Alison Bicknell

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Resolving Disputes: The Wonders of Mediation

After many years of curiosity, my eyes were finally opened when I recently participated in a mediation. The dispute concerned a property which had excited 3 years of grief, 1 year of court time and tens of thousands of pounds in costs.

I am a sceptic by nature. During my lifetime I have suffered many trials and tribulations, witnessed and experienced many injustices. Indeed ‘Justice’ can often seem elusive and out of reach.

Mediation had been recommended by the Judge. Indeed mediation is recommended by the Courts as a cheap, fast and cost-effective way of resolving disputes.

At the outset, however, I had my doubts. I had rated the mediator’s chance of helping both parties resolve, what appeared on its face, an intractable dispute, which had proved beyond the reach of warring parties and had taxed the minds of their lawyers for years, as hopeless. And yet within 1 day and the expert crafting hands of an experienced mediator, the deed was done and the matter was finally resolved.

Am I astonished? Yes. Can mediation help you? Only you can decide. I, however, am now convinced.  

Prior to the mediation, it had frequently felt as if the parties were banging their heads against an unresponsive, impenetrable and impassable brick wall. The mediation, however, was responsive, fluid and dynamic. The Mediator stepped across the divide and reached out to both sides, creating pathways for both parties to explore issues and enter into a sensible and productive dialogue. Most importantly the mediator listened. The Mediator will also listen to you.

It is clear to me that Mediation has a leading role to play in the resolution of disputes. The word should be spread loud and clear. Mediation could help you.

Be warned those of you who avoid mediation. Courts can impose punitive sanctions against parties who do not mediate (see PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288). Indeed there are many stories of otherwise successful parties both Claimants and Defendants losing all or a significant part of their costs for failing to mediate.

Here is a final word from the Judiciary. Mr Justice Norris in the recent case of Bradley v Heslin [2014] EWHC 3267 (Ch) said:

‘I add my voice to that of many other judges who urge that, even when proceedings have been issued to preserve the position, the engagement of a trained mediator is more likely to lead to an outcome satisfactory to both parties (in terms of speed, cost, resolution and future relationships) than the pursuit of litigation to  trial.’

In our case the Mediator certainly created the platform and weaved the dynamic framework upon which resolution was achieved.  

Can mediation work? Yes. I have tried it and know. Mediation successfully resolves most disputes. Mediation could also work for you.

My observation is that mediation hearings create an entirely different dynamic. It is not about winning; it is about reaching an agreement. Therefore, resolution is the only victory.

As told to Russell Evans of Resolve UK Mediation by Jeff Lampert

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Advocacy

Yesterday, I delivered my keynote speech to law students at Brunel University, prior to running my Advocacy course this term. Here are some of the more salient points, I felt I should share, in terms of presentation, attitude, and delivery.

Adversarial advocacy is a polite contest between two sparring advocates seeking to persuade a Judge to prefer their argument, to that of their opponent.

You win by presenting a perceptively persuasive, and irresistible argument within the rules by not misleading the court, not losing your temper, and keeping a cool head, despite a Judge's questioning, berating, or anything else going on in a court at the time.

Understand and hone your skills of perspicacity: an ability to understand things quickly and make accurate judgments, especially in relation to the attitude and perceptions of the usher, the clerk, your opponent, your client, and the Judge. All of these people are linked. If you are excitable and arrogant outside of the doors of the court, it is gossip for the usher who tells the clerk, who tells the Judge, so be polite and respectful of everyone in the process. There is no need to ever be rude to court staff. Conversely, shmoozing has its place at appropriate times, but being a sycophant only seeks to annoy.

Watch the Judge's pen. Attune the speed of your delivery so that notes can be taken, and good points are not missed. A Judge asleep is a bad thing...A Judge who stops writing is a bad thing. A Judge who looks at the ceiling is not a good thing. A Judge who stares intensely at you is not a good thing.

Get into a rhythm when advocating. Try to deliver your points in threes. Stories naturally have a beginning, a middle, and an end. What is easy on the ear, is an argument that is put simply and unequivocally, and brings with it a sense of logic. Delivery having regard to the tone, and pitch of your voice, with adequate pauses, makes for receptive listening.

Be aware of your poise. Don't be a diva. Be humble, yet firm. Confident, but not arrogant. Be respectful, cool, calm, and collected. No over-dramatics. Don't become too emotional. Don't be intense. Rather, be measured in the presentation of your delivery. No hands in pockets; no fidgeting, no playing with your phones, no twirling of pens. All sound and movement can be seen from a higher vantage point where Judges usually sit, and it detracts from what you seek to say and is an unwanted and unnecessary disruption. The apparent ultimate standing angle in which one is likely to be most persuasive is 84.5 degrees. Good luck with that.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Success Story of a diyLAW Volunteer

– getting pupillage: be yourself

It took Krishma Patel a series of trial and error interviews before she was offered pupillage

I never imagined getting pupillage would be this difficult. It took me four years of hard work, hundreds of applications, hours of practising interview questions and weeks on end reading about scintillating legal topics and current affairs.

While studying law, I participated in a mooting competition in my penultimate year. From the moment I stood up to present my first argument, I knew that I wanted to be a barrister. I decided at that point that I would do everything in my power to get there.

I went on to study the Bar Professional Training Course (BPTC) at Nottingham Law School. During the course of this year, I attended numerous pupillage talks and networking events. I realised that I had to start thinking outside the box - everyone had got firsts, done a number of mini-pupillages and had marshalling experience.

Early this year, I started volunteering with a company called Help4LiPs (helping litigants in person - now diyLAW). I wanted to play a small part in helping those who had been hit hard by the legal aid cuts. After volunteering (and networking non-stop) for a few months, the opportunity arose to help a litigant with a case. The litigant was claiming a sum of £12m from a bank. I drafted the witness statement for his hearing at the Court of Appeal. If I had not networked as much and hadn't committed myself to volunteering with the company, the chance to work on a case of such magnitude would not have arisen until very late in my career (if at all).

I have three key tips that I hope will help you to attain pupillage:

• First, I encourage you to think outside the box in terms of legal experience. In all of my interviews, the panel didn't want to talk to me about my glittering array of mini-pupillages. They were much more interested in the work I did at Help4LiPs (now diyLAW).

• Second, start your applications early. The practice form on Gateway (the online application service for pupillages) is available much earlier than applications open. It will take you a number of drafts before you are content with your final version. This year it took me nine drafts until I was happy.

• Finally, and most importantly, be yourself in interviews. Obviously make sure you are professional and courteous at all times but don't try to be someone you aren't. You don't get a second chance to make a first impression.

This is a mistake I made time and time again. In interviews I always tried to come across as the person I thought the chambers wanted me to be. In my last interview, I thought I'd see what happened if I was myself. And guess what, I was offered pupillage. To my surprise, they must have liked me. It is a huge relief to know that during pupillage at my chambers I don't have to pretend to be anybody that I am not.

I am very sympathetic to all of those going through applications on the long hard hunt for pupillage. But do not give up. I am proof that with sheer hard work and determination you can do this.

Good luck.

Krishma Patel

This article was originally published here.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Benefit from Being a diyLAW Volunteer

Adam Marley, Law Graduate

After 5 years' studying at the Open University while working full time as an airline steward I finally achieved my Law Degree. After the initial elation of receiving my certificate and graduating in front of my family at The Barbican, I was left wondering 'what now?'.

I had spent about 20 hours a week studying over the course of my degree and after graduation, I had all this extra time on my hands. I stumbled across an advertisement asking for volunteers for an organisation providing help and information for people representing themselves in legal proceedings.

I sent off my CV and was called for an interview a couple of days later. The office arrangement was simple, resources limited, but one thing there was no lack of was enthusiasm for the project. I accepted the offer of being taken on as a volunteer and worked on a number of small pieces of work before I picked up a major project to write How-To guides for couples going through divorce and dissolution of civil partnership proceedings.

I was put in touch with a qualified barrister who guided me and provided feedback on my work. Her encouragement was really gratifying and her experience helped me to adapt my academic knowledge and apply it in practice.

Through my contact with Help4LiPs (now diyLAW), I had the opportunity to make contacts in the legal profession, attend meetings and conferences and explore the legal field. Help4LiPs (now diyLAW) is pleased to work with the Brent Community Law Centre which provides legal services to the community in North West London. I am privileged to be working closely with a senior solicitor, assisting her with her caseload and learning the practical application of the law as well as the legal processes that take place behind the scenes. I have had the opportunity to conduct case conferences and meet with clients, as well as to attend court and tribunal hearings. I have seen cases through to their conclusion and have seen the great impact our work has had on the lives of the people we have helped.

In addition to the opportunity at the Law Centre, I am also still involved with Help4Lips (now diyLAW) on a day to day basis. As part of their online strategy, press releases are sent out at regular intervals. I help to source relevant materials for the program coordinator to use. I am also involved in interviewing new volunteers and helping to formulate strategy.

The experience that I have gained through my contact with Help4Lips (now diyLAW) has been stimulating and enjoyable. I can see the effect of the work I do and that is what maintains my commitment.

Krishma Patel, Law Graduate

Help4Lips (now diyLAW) – My experience
I started as a volunteer with Help4Lips (now diyLAW) in February 2014. I was quickly introduced to the team who were very supportive and friendly. My first task was to contact law firms to persuade them to produce guides for litigants in person in different areas of law. This was a challenging and interesting assignment – it allowed me to build my communication and interpersonal skills.

Through my work with Help4LiPs (now diyLAW), I was able to gain exposure to the Brent Community Law Centre, where I also work as a volunteer. I currently assist in the promotion and development of the Young People’s Law Service in Brent. This has included organising talks and speaking at schools as well as organising and participating in fundraising events. It is a varied role, providing the opportunity to meet a range of individuals.

In addition to this, at Help4LiPs (now diyLAW) I was provided with an opportunity to assist a LiP with a long-running case relating to banking and insolvency law. It is a relatively high profile case and had I not been working with Help4LiPs, I believe that the opportunity to work this closely on such a large and complex case would not have arisen. It has allowed me to build drafting and analytical skills, both of which will assist me in my career at the Bar (when I get there!).

Aside from all of the above, working with Help4LiPs (now diyLAW) has allowed me to form and build a network of contacts. Everybody at Help4LiPs (now diyLAW) has been extremely supportive of my career aspirations and have always put me forward if and when any interesting opportunities arise. It has genuinely been an invaluable experience with so many interesting people. I really have learnt so much!

Anoud Said Abu Odeh, Law Graduate

After graduating with an LLB Law degree from Queen Mary, University of London, I went on to certify as an attorney in the State of New York. One of the requirements that candidates need to fulfil before completing their certification is 50 hours of pro bono. It was very difficult for me to find a programme or project that suited the type of pro bono work New York would accept. I was finally put into contact with Help4Lips (now diyLAW), which made available to me different options of projects and placements that I could work on to complete my hours.

I completed my hours at Brent Community Law Centre. Help4Lips (now diyLAW) helped me get into contact with them and arranging my pro bono placement with them was very simple, efficient and straightforward. BCLC was very flexible with me in terms of dates, working hours and even gave me the choice as to which department of law I would like to work with.

I chose to work with the immigration department at BCLC. The immigration solicitors at the centre were very engaging and their approach with volunteers was very hands-on, which ensured that I learnt a lot while working at the centre. They allowed me to work on a multitude of tasks with them, such as meeting clients – I even interviewed a potential client on my own – researching and organizing documents of evidence for trial, answering the advice line and administering the centre in general. I was given an induction of the center on my first day, introduced to the staff and was readily provided with any assistance I needed; whether it was simply how to operate the computer system at the center or whether it was something a little more complex and substantive, such as how to conduct research in search of evidence for a certain case. Most of our work focused on helping clients with their asylum claims.

BCLC is a small centre that is visited by many different clients every single day. The work ethic and commitment of all the solicitors and volunteers to the operation of the centre, its clients and their needs was inspiring and abundant. Helping the many people that came knocking on its door on a daily basis in urgent need for legal advice was extremely gratifying. On top of that, everyone at the centre was very friendly and I felt like I was amongst friends rather than colleagues. I would recommend a placement at BCLC to anyone.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Legal Abuse Syndrome

Karin Huffer

Legal Abuse Syndrome (LAS) is a form of post-traumatic stress disorder (PTSD). It is a psychic injury, not a mental illness. It is a personal injury that develops in individuals assaulted by ethical violations, legal abuses, betrayals, and fraud. Abuse of power and authority and a profound lack of accountability in our courts have become rampant.

The book, Legal Abuse Syndrome written by Karin Huffer is the result of her experiences for
over twenty years as a marriage and family counsellor in private practice. What is unique
about this book is that it addresses the victims of legal abuse from a psychological therapeutic
perspective. The objective is to move the victim beyond their predicament into positive action
and thinking. Ms. Huffer illustrates the abuses with the cases of seven victims of Legal Abuse
Syndrome, detailing their pain and suffering and the various stages of the therapy they have
undergone for recovery of their emotional health.

Ms. Huffer found that many victims of the legal system suffer from Post-Traumatic Stress
Disorder. She identified this as Legal Abuse Syndrome, brought on by the abusive and
protracted litigation, prevalent in our courts. According to Ms. Huffer you may be suffering
from Legal Abuse Syndrome if you feel deeply disillusioned and oppressed as a result of your
experience with the legal system; if you feel you were frustrated in obtaining justice; if you feel
your dreams and plans for your life were torn from you by a system that is supposedly there
to protect your rights and property; if you fear that the system will defeat you at every turn and
there is nothing you can do about it, and if you feel that you have been victimized several
times over, by the perpetrators, by lawyers, judges, bailiffs and other court personnel. As a
consequence you may suffer from tension and anxiety, recurring nightmares you may feel
emotionally an physically exhausted, numb, disconnected and vulnerable.

A central point of Ms. Huffer’s book is that the victims in America are not only assaulted by
crime, but also by the abuses of power and authority administered by tax dollars intended to
provide due process of law for the protection of civil rights. Ms. Huffer observes that not only
does the justice system move slowly, but delays are used as strategy by attorneys to weaken
their opposition economically and emotionally and to provide hefty fees for attorneys. Ms.
Huffer notes that when courts fail as a consequence of officially sanctioned wrongdoing it
leaves victims and vigilantes in its trail. The rage of these victims accumulates when they are
not provided a satisfying place to turn to. She concludes that the enormous betrayals and
inefficiencies that make up bureaucratic post-crime experiences are literally attacking the
emotional health of the nation. She recommends that the community of American citizens
adopt the following:

1. Oppression and abuse of power are injurious to the health of the victims. Domination by abusers of bureaucratic power threatens the very functionality of the public and private sections in our country.
2. Victims are not self-interested, narcissistic folks who sit around and wallow in their losses. They are courageous individuals who face their pain and care to right the wrongs. They participate in the collision of evil and good as it is classically intended in order to achieve balance. Denial is popular, but far less responsible.
3. Trust is a social staple that must be protected just as earth and water must be protected to provide for survival. When trust is damaged the community suffers and society as a whole will eventually falter and collapse (Bok). Veterans of crime must exude zero tolerance for lying in courtrooms, lying in political campaigns, lying to cover-up, and deceptions through omission and non-performance by public officials and public servants.

A new cause of action that is a new basis for lawsuits is being accepted by the courts allowing
cases to proceed on claims of "organic brain injury" caused by traumatic stress. An article
appeared on this on November 11th of 2002, in the National Law Journal.

Harassment related emotional distress is being recognized in the work field upon which
lawyers are now suing. To read the article by Joni Johnston, Psy.D. There is no reason why
the same facts and reasoning should not apply to the harassment inflicted on victims in a
lawsuit.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Preparing for Divorce

As of April 2013, almost all legal aid funding for family law cases came to an end, with the majority of families unable to afford any legal representation.

The courts are already faced with unrepresented baffled litigants acting in person, which, in itself, causes delays and expense to the judicial system because the court has to spend time explaining legal procedures to litigants acting in person.

Lawyers who know the law can offer specific advice and recommend legal actions that are tailor-made and appropriate for each individual case, however to help the reader.

A divorce is never an easy process to go through. With emotions high, finances at stake and, if children are involved, their custody up in the air, it is understandable that finding agreeable ground is not always an easy process.

If you have or are contemplating filing for a divorce from your partner, it is always good to know what to expect throughout the procedure and what things you may be able to prepare for. Whilst there is no guarantee of a smooth and problem-free process, it is important to understand the consequences and consider every possibility before acquiring a divorce.

Whilst there is no such thing as a ‘simple divorce’, acquiring the services of a good lawyer will ensure that your divorce is carried out fairly and in consensus with all parties involved. Ensure you acquire the services of an established divorce specialist lawyer, as their experience and expertise will help to guide and advise you throughout the process.

What many people are unsure of is what a divorce will actually involve. Amid tales of costly, argumentative and outrageous disagreements, the process itself is far less intimidating and constructive results can be achieved responsively.

What many people want is a quick and resolved resolution, you might not be aware that there are different ways to get divorced.

Mediation and Collaborative Family Law both aim to give the divorcing couple more control and more of a say in what happens. They’re not soft options, but there’s been lots of positive feedback about the fact that these approaches can be less damaging emotionally (and sometimes less expensive) than the traditional route to divorce.

Here is a basic guide on what you can do to help prepare for the divorce process.

1 Gather Financial Information:

If you are able to organise your finances before the divorce is underway, you can begin to gain control over the financial expectancy of the divorce. Obtaining a divorce is not cheap and the longer the procedure goes on, the more legal costs can begin to add up.

Outline any debts you owe and make sure you have invoices and receipts of purchases and bills as well any account information. It may be worth closing or freezing any joint accounts, in order to prevent your spouse from using the account as well as running up charges that you may be held responsible for. This will protect both parties involved.

2 Don’t Move Out:

This may go through your thoughts and unless there is a form of abuse, by moving out you could inadvertently affect the outcome of your divorce.

By moving out, you could affect the interest that you have in property. It is important to remain strong and should you have no alternative but to move out, continue to pay a portion of your mortgage payment and document your contributions. This can affect a decision on property distribution as well as child custody.

3 Children Are Always The First Priority:

It is important to remember this at every stage of your divorce. Remain on your best behaviour as a divorce can often mean being put under a microscope. Ensure you do nothing to affect the outcome and don’t provide your spouse with ammunition.

A divorce can be a stressful process for all involved, and none so more so than for the children involved. Consider their needs at all times and ensure that their requirements are met. Don’t stop being a parent!

This article was contributed by Camilla Choudhury – Khawaja.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Wills, Probate, Estates & Dispute Resolution

by Russell Evans of Resolve UK

Claims in relation to the estate of a mother, father, brother, sister, spouse or partner are often highly emotive. There is often a sense of injustice, suspicion and mistrust.

Sometimes there are deep divisions, historic rivalries and even jealousies with multiple competing family members and even multiple competing families.

We no longer live in a world of the nuclear family where all members of the family live under the same roof or in the same locality. Families are frequently dispersed. We now live in a world of multiple partners, high divorce rates and unmarried couples. Indeed there may be multiple families and offspring.

Estates are no longer small. Rather than a world characterised by predominantly tenanted residence we now live in a world of property ownership at a time which has witnessed surging property prices which have pushed up the value of even a modest terraced house. Bequests are no longer trinkets and mementos. Often there is an estate of some size. Indeed there may seem a pot of gold worth fighting over.

One family member may have been favoured. Some family members may feel let down or left out. Others may feel that they have shouldered the burden. Indeed because of our fragmented society the burden of caring for an elderly parent may frequently fall on one family member alone.

It is within this historic emotionally charged landscape that disputes arise. There may be a feeling of injustice because of the terms of a will or because of significant lifetime gifts. Maybe promises have been made! Often there is unfulfilled expectation.

Typical wills, probate and estate claims include:

• Claims for financial dependency under the Inheritance Act
• Claims challenging the will by virtue of undue influence
• Claims challenging the will by reason of incapacity or lack of knowledge
• Claims for an extra share of the estate by reason of proprietary estoppel
• Claims for an extra share of the estate by reason of constructive trusts
• Claims arising out of inactivity and non distribution of the estate

The basic requirements for a will are set out under the Wills Act 1837 including it’s written form, need for signature and attestation. In addition the testator must understand the nature and affect of the will. As Lord Cockburn said in Banks v Goodfellow (1870) LR 5 QB 565 :

‘It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’

Claims attacking the validity of a will including claims based on undue influence or lack of testamentary capacity and understanding can lead to the revocation of a will, a prior will taking precedence or even intestacy. The recent case of Hawes v Burgess (2013) EWCA Civ 74 concerned a testator with dementia and the case of Hubbard v Martin (2011) EWHC 2750 an estate passing to someone described as a cleaner.

Undue influence requires some form of coercion. What amounts to actual undue influence is a question of fact. As Sir James Hannon said in Wingrove v Wingrove(1885) LR 11 PD 81:

‘The coercion may, of course, be of different kinds, it may be in the grossest forms such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence.’

As Viscount Haldane also said in Craig v Lamoureux(1920) AC 349:

‘Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgement … will constitute undue influence.’

Claims under the Inheritance Act are frequently brought by wives, partners, disappointed children and others who have been maintained by the deceased.[i] In order to bring a claim under the Inheritance Act the testator must at the time of death have been domiciled in England and Wales. A claimant must fall within one of several defined categories including spouses and children. A claimant must then demonstrate that no reasonable financial provision has been made for him or her. If so a court will then decide what if any provision should be made. There is a marked difference in approach between claims by spouses and those of adult children.

Claims for an additional asset share by way of constructive trust or proprietary estoppel are usually based on representations, expectation and conduct. Constructive trusts can arise in circumstances where there are direct contributions towards the purchase price of property including mortgage instalments. Proprietary estoppel requires a representation by the testator and detrimental reliance as a consequence of that representation by the claimant.

Recent cases have included Thorner v. Majors (2009) 1 WLR 776 where a farmer promised a young relative that in exchange for working on his land for little or no pay he would inherit the farm in his will. Other successful cases have included claims based on promises where the claimant has moved in with the testator, paid for and effected improvements to property and provided long term care. The case of Bradbury v Taylor (2012) EWCA Civ 1208 even concerned a claim made during both parties lifetime when a testator changed his will contrary to previous promises which had been relied upon. As always actual circumstances and proof are essential. When dealing with proprietary estoppel claims the courts will do no more than is necessary to do equity between the parties.

Contentious probate cases in their multitude of forms are embedded with highly personal, highly emotive disputes. Court cases by their very nature tend to reinforce the conflict focusing as they do on the central dispute fuelling the flames of anger, hurt and frustration. Mediation by contrast focuses on dispute resolution and reconciliation.

Mediation can tread its way through the historic anger, resentment and mistrust and facilitate a dialogue, a reflective review and a calm reasoned discussion in a confidential setting which usually leads to a framework for resolution.

Court cases are littered with emotional turmoil, high costs and trauma. As Mr Justice Briggs observed in the case of Lilleyman v Lilleyman (2012) EWHC 1056 which concerned a wife’s claim against her late husband’s estate:

‘While it may be that a ‘no holds barred’ approach to certain types of litigation is entirely appropriate, it is not in my judgment at all appropriate in the context of claims under the Inheritance Act.’

In failing to negotiate and compromise Mr Justice Briggs noted that ‘Mrs Lilleyman was …engaged in a high risk venture in which she played for high stakes and, in substance, lost.’ Cost consequences of course followed.

The Judge can, as in Lilleyman, order that the costs are substantially paid by one party. The judge can also however order that the costs are paid out of the Estate thereby penalising all parties. The significant costs of litigation can even on occasion consume the entire value of the Estate.

Many judges believe that parties should engage in constructive discussions and seek to resolve their dispute by way of mediation. Indeed this is what Lord Justice Ward said in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

If you are engaged in conflict Mediation could be right for you.

Russell Evans
CEO & Mediator at Resolve UK[ii]

[i] There are relatively short time limits for dependency claims under the Inheritance Act.

[ii] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution and an expert in contentious probates cases.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Avoiding Litigation

The civilized separation of “X” and “Y”

Following is an outline of the circumstances and the process the parties went through.

The marriage had broken down irretrievably and relationships were poor and volatile. There were only two points of agreement: they would separate and reach a formal agreement on the distribution of assets – they would not actually divorce, and they wished to avoid cost of employing Lawyers in order to reach agreement on sharing of assets.

There were no children involved.

Left to their own devices there was no chance that they would agree on anything, so each asked a friend to help the process as a “Mediator” and I was one of these friends. Before the process started I got to know the other Mediator – first decision was to call ourselves “Friends” rather than “Mediators” and we drafted a set of notes outlining the roles we were prepared to play.

These included:

the “Friends” were not entitled, or expected to, express an opinion regarding the details of the Separation of Financial Affairs,

the overriding objective of this arrangement was to ensure an Agreement was reached and the smooth enactment of the Agreement and that is the primary responsibility of the “Friends”,

the “Friends” would work hard not to “take sides”,

they would also establish an appropriate working relationship and be free to discuss relevant issues without feeling obliged to share details of these discussions with X & Y. In the case of dispute the objective of the “Friends” would be to propose a joint resolution.

An organisation called Peaceworks defines Mediation as “voluntary, confidential process where people involved in conflict are helped by a neutral third party (the mediator) to resolve their problems collaboratively. The mediator never takes sides or imposes solutions, but helps the participants reach a solution that they are happy with which is then drawn up into a written agreement”.

And that is pretty much what we did.

There were a lot of financial issues – with assets spread over several countries, various pension schemes, investments etc. As Mediators, we helped create a list of all assets and then promoted discussion on each until agreement was reached. There was a deal of Acrimony and on a couple of occasions: we Mediators threatened to pull out unless the two got themselves under control!

We recorded each element as agreement was reached and produced a final statement of intent, which they both signed. This was then formalised by a Solicitor in a manner which would allow proper distribution at that time and would also stand formally should they eventually divorce. This formal document was signed by both of them.

Once the agreement was formalised we drafted an Action Plan for the distribution of assets with a suggested timetable. As “Friends”, we monitored progress and cajoled when one or other was holding back.

It was not particularly easy but certainly achieved a better and cheaper solution than if Lawyers had been battling it out.

I also found it an interesting and rewarding challenge.

The McKenzie Friend’s enemy?

If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?

Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.

The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER  1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.

Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.

Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.

The difference with Ian Hanger was that as an officer of the court, he had a duty to the court not to mislead, and not to misrepresent the facts. He was regulated by his professional body, albeit not the Courts of England and Wales, but rather, the Australian courts.

A number of cases have recently arisen where McKenzie friends have over-stepped what is expected of them. Indeed, there is a notional understanding of the role of a McKenzie friend, but nothing in stone. Assisting a litigant-in-person can be done in many ways, and the role is not clearly defined.

This blogpost does not seek to question whether a McKenzie friend still has a place in court. The writer believes overwhelmingly that McKenzie friends are a huge help not only to the courts but to the litigant-in-person employing them, and the process generally….PROVIDED THAT THEY ARE LICENSED AND REGULATED AND KNOW WHAT THEY ARE DOING, AND THAT THEIR ASSISTANCE PRESUMES THEY ARE CONVERSANT IN LEGAL PROCEDURE AND PRESENTATION.

Indeed, where legal aid is dwindling, and legal representation cannot be afforded, (and in some occasions, not trusted), and conditional fees are not working or not permitted, someone to assist in court is a big comfort.

There are of course a number of groups who provide assistance as to court preparation such as Help4Lips, Citizens’ Advice Bureau, LawWorks, and the Bar Pro Bono Unit.

There are other groups who will help emotionally and with practical advice, but not legal advice, such as the Personal Support Unit.

Going back to the main question, what duty does a McKenzie friend have to you, the litigant-in-person?

Does the McKenzie friend derive a benefit for money or money’s worth? Is there a written or implied agreement in place which establishes a contract? If yes, the relationship may be contractual. If so, bad or misleading advice could be negligent advice.

What if there is no contract but you rely upon the McKenzie friend as a skilled person with expert advice in the field of legal procedure? There may be a relationship established in Tort which gives rise to negligent advice.

Ok. So you may have a remedy for negligence in cotract or tort, and the McKenzie friend gives you the wrong advice which leads to a claim arising against the McKenzie friend: Not so much a friend anymore…

Is there a distinction between a McKenzie friend who charges a fee, and a McKenzie friend who charges no fee?

There is a growing surge of professional McKenzie friends who charge a fee.

Well, herein lies the problem. McKenzie friends are not regulated. Their duty to the court is not regulated by any professional body. They have no codes of conduct to adhere to. They do not carry any indemnity insurance to cover them for any negligent acts/omissions, or advice. Yet, they can appear to assist litigants-in-person, and at the discretion of the court they can speak on their behalf.

What do you get with a professional McKenzie friend, that you do not get with a solicitor?

It may be cheaper by way of an hourly or fixed rate, but what if things go wrong? A solicitor is regulated by the Solicitors’ Regulation Authority. A solicitor abides by codes of conduct, and has duties to the court as officers of the courts not to mislead or misrepresent a case. Duties of confidentiality to their client.  A solicitor must have indemnity insurance. Costs and estimates must be regularly given and revised. Complaints procedures are ingrained into their terms and conditions. They are liable to you both in contract and in tort. Other regulatory breaches result in discipline, fines, and ultimately being struck off the roll of Solicitors.

A recent publication suggests that litigants in person should be given special treatment to a lawyer in court. That makes perfect sense. The profession of a litigant in person is not usually that of a lawyer. They do not know the rules and regulations and yet they are expected to know how to present an argument, and how to present paperwork.

The writer’s view is that a McKenzie friend, and especially a professional one, should be licensed. They should be regulated. There should be a code of conduct. There should be a separate qualification to obtain, which limits their assistance to procedure and presentation, rather than to provide legal advice. There ought to be a complaints procedure, and a disciplinary body. Only those fit to practice, honest, and of good character should be permitted to hold such a license.

I very much hope that such regulations and better judicial guidance will be forthcoming following the various consultations most notably the Legal Services Consumer Panel Report, Fee-charging McKenzie Friends (April 2014).

Regulation, education, and licenses are needed to ensure a good standard of McKenzie friend. Sociopaths, psychopaths, manipulators and con-artists, seeking to manipulate volatile and vulnerable litigants-in-person in stressful situations, some of which I have had the displeasure to come across when in Court, hiding behind the mask of a McKenzie Friend, need not apply. This should not extend to provision of legal advice. That is a regulated activity and if you wish to give legal advice, and advocate in court, then become a solicitor, a barrister, or a legal executive.

The McKenzie Friend’s enemy is not the court. It is not the litigant-in-person. It should not be a regulatory body, or lawyers on the opposing side. Indeed, the McKenzie friend should have no enemies.  Provided they adopt the appropriate balance to assist both the courts and the litigant-in-person, McKenzie friends should be considered assets and not liabilities. (licensed and regulated ones conforming to a code of conduct and carrying indemnity insurance).

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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