Prevention Is Better Than Cure – Especially In Family Law
Over my 40 years as a solicitor I have acted in breakup cases for a large number of spouses, parents, children, cohabitees and divorcees.
The end of a relationship is a sad business anyway, but with legal, financial or childcare tussles added to the mix, it is an awful experience for clients. No amount of sound advice and effective representation can render it any more positive, and even a “good” result by way of a settlement or a court case is just making the best of a bad job. I have known plenty of clients who have come away from a bruising negotiation successfully, and still have hated every moment of the process.
The statistics for failed partnerships and marriages are sobering. 42% of marriages end in divorce or separation. That adds up to hundreds of thousands of arguments and fights over who gets the house, care of the children, maintenance, and in the worst cases who gets an order to prevent the other partner from coming near and committing violence or abuse.
I guess you might think that as a lawyer, I relish all this mayhem and discord. More argument makes more in the way of legal costs, a difficult divorce brings a higher fee? But not at all so, at least in my case. Over my four decades I have found that what is best for clients is just fine for me and my colleagues. It is always better to have an agreed, civilised settlement - not just in family law, but generally – to close down an argument as quickly and cost-effectively as possible. If landlord and tenant are differing about a commercial lease, get an arbitrator in, look for compromise, get heads knocked together round a table. If a residential house purchase goes wrong, find the solution, don’t start threatening court proceedings from day one.
It has long been clear to me that couples embarking on cohabitation, marriage or civil partnership should have to sit an exam before being allowed to get together. Indeed, in some faiths there are lectures or classes for engaged couples, and while these are mainly about personal and religious aspects of living together and having a family, it is sensible not to leave the rest of your life to chance and optimism alone.
You may think I am heading towards the question of formal “prenups” – pre-nuptial agreements or contracts, in which well-to-do Americans divvy up the spoils before committing to each other, to hold back vast wealth so that a gold-digger doesn’t get claws into it. That certainly is one extreme, though it is worth noting that more and more quite ordinary UK/Scottish couples go down this road, and for good reason.
But actually, I mean something more comprehensive and less formal. At the point of separation – the first meeting with a lawyer, it most often becomes obvious that in amongst the hurt, disappointment and bewilderment, there is substantial ignorance. I am not using that word in a derogatory or insulting manner, but a clinical one. Client after client has little idea of the legal underpinning of a relationship, the rules that apply on separation, the rights and duties incumbent on each participant. Over my 40 years the general level of lay population knowledge has improved for sure, probably as a result of the availability of information online, but overall things are still way less than they ought to be.
One example – a client might come in to see me, and among the various pieces of the financial picture, she tells me her husband has incurred a lot of debt, but it is in his name so that’s ok. Not necessarily so - the technical phrase “matrimonial debt” can in many cases cover loans, credit cards and even mortgages in one name rather than both. It depends on several potential factors, and in particular the purpose for which the debt was incurred. If it was for something for the couple/family, such as a carpet in the front room, liability may very well be shared with the spouse whose name is not on it. On the other hand, if it was to fund his annual Portuguese golf and lads’ holiday habit, it is less likely to be matrimonial.
The same is so with assets – occupational pension is in my name, and I had it from before my marriage, so why should I have to share it? Well, that’s because the law recognises the joint contribution to a marriage. Amongst a potentially limitless list of mutual benefits and obligations, if, say, my wife hadn’t stayed at home or given up a career to work part-time to look after the children, I would not have been able to go out and get that high-earning job. Marriage and other relationships are not price lists, they are a sharing of almost everything. Be clear I don’t make a sexist point by talking of husband and wife, as the roles may easily be reversed, I just describe one of a million examples – and if it is a same-sex relationship the rules are no different. In this proposed case, my wife will be entitled to a share of the growth of my pension between the date of marriage and the date of separation, calculated according to a well-established legal formula. The law labels this Fair Sharing, and I don’t have a difficulty with that, personally or professionally.
The fine details of rules and statutory duties is for another time. My point here is that too many people go blissfully into coupledom without a good grounding in their legal position. This can have two consequences. One is that on the relationship failing, they don’t know how everything should be divided up. The other is that ignorance, or a false understanding of the law, might either encourage them to leave on the wrong basis or at the wrong time, or, more likely, discourage them from getting out of a poisonous or even dangerous situation, for fear of losing everything.
I am not proposing that everyone actually takes an exam, but brighter minds than I will be able to create or envisage the right project for public legal education, whether at school (much good work is done in Modern Studies looking at our legal system as part of the social fabric of our society, and I have been involved in various projects to bring mock court cases to the classroom for students to participate in) or in the wider community. Older readers will remember back in the day when I conducted weekly live Q & A legal phone-ins on radio and TV. There was a national thirst for information on the law, and it was as important then as it is now to educate citizens in the rights and duties that affect them.
There is a fundamental principle in our law – Ignorantia Iuris Neminem Excusat, and for those whose Latin is rusty, it just means that ignorance of the law is no excuse, when we are in breach of it. Trying to tell the police that you have never heard of speeding as being an actual criminal offence is unlikely to get you off. It is a similar situation with family and personal relationships. If you find after separation that your long-held beliefs in the law are actually wrong, the law still prevails no matter how adverse or damaging. The rights and duties on us are universal and comprehensive.
Don’t leave it till it’s too late to find out what is and isn’t yours.