Thursday, 28 June 2012

I bet I can guess your age!

Just tell me what you think of the Supreme Court’s decision in Jones v Kernott, and I’ll tell you how old you are (roughly).

Answer the poll, now!

Now that the profession has had time to digest the Supreme Court’s decision in Jones v Kernott, which was handed down in November 2011, opinion appears to be divided as to whether the outcome was a step forward in the protection of cohabitees’ property rights or an unhelpful precedent that muddies the traditional property law rules.  In my experience of discussing this topic with other practitioners, those more recently qualified tend to favour the former position while the more experienced generation take the more cautious line.

In a nutshell (and it is a big case to squeeze into a small nutshell, perhaps a coconut would suffice), the couple, who were never married, bought a house in 1985 in joint names and valued at approximately £30,000 but made no express declaration of trust.  In 1993, Mr Kernott moved out and ceased all contributions to the mortgage and upkeep.  Fast-forward 14 years to 2007, and Mr Kernott wants to realise his interest in the property prompting Ms Jones to make an application under TOLATA 1996 for a declaration that she was the sole beneficial owner.  What the Supreme Court decided was that there could be an intention inferred and/or imputed from the parties’ actions that can affect the way they hold the property, even if no express intentions can be shown.  On that basis, they decided that from the time that Mr Kernott moved out the couple no longer intended to hold the property as joint 50/50 owners and awarded Mr Kernott a meagre 10% interest.

I’m simplifying things of course but there is a bigger picture I am trying to look at here.

Experience versus Youth

The younger generation appear to analyse the Jones v Kernott problem from a more idealistic view point.  They respond more to the facts of the case and in particular Ms Jones spending 14 years funding the mortgage and household and see the SC decision as a fair outcome, giving her the larger share of the jointly owned property.  Those more experienced tend to dwell more on the specific application of the law and express concern at the idea of asking the court to impute an intention that might not have been there.
Perhaps this comes from their increased familiarity in dealing with such issues or disinclination on the part of the youngsters to get beyond the basic facts and really analyse the decision (the case, and the Supreme Court decision is not easy reading).  That said, the five Supreme Court Justices who made the decision were none of them spring chickens and they unanimously decided (alright Baroness Hale differed on the reasoning) that the property was not to be treated as 50/50 in these particular circumstances.  I don’t think anyone would argue that they did not give proper consideration to the law.

Evolution of Social Ideals

Cohabitation is on the rise.  People are choosing not to marry or are marrying much later in life.  To some people cohabitation is as acceptable, if not preferable, to marriage, and they put no stock in the idea that the quality of the relationship is in any way contingent on its status.  Strengthening the rights of cohabitees might be seen as a logical step to bring the law in line with this evolution of social ideals and consequently is much more palatable to a generation that has grown up in a world where non-traditional relationships are socially acceptable.  To those more traditionally inclined the decision in Jones v Kernott could be viewed as legitimisation of the non-married couples status beyond that of simply two people who purchased a property together.  One wonders if the decision would have been any different if there had been no children involved (there were) and so the property was, to some extent, considered as a family home.
I’m not suggesting that all newly qualified family lawyers are pro-cohabitation and anti-marriage (I qualified last year and got married this year).  Nor am I suggesting that the elder generation of practitioners frown on everyone living together outside of wedlock.  I am simply commenting on a trend that has caught my attention and would like to extend the debate.

Thursday, 21 June 2012

Social Media and the Voice of the Child in Hague Convention Cases

Gay Marriage. Gay Divorce. Same Difference.

As the deadline for the government’s consultation paper approached on 14 June 2012, it was difficult to avoid the media battle between those in support of the Church of England and those in support of gay marriage.  I am not going to give an extensive review of all the arguments for and against gay marriage here (there is plenty of information out there already) but rather I wanted to give some consideration to one particular argument and to the practical challenges which may arise for family law practitioners if gay marriage is legalised.

Confusing Uniformity with Equality
Part of the case against gay marriage is that equality can be, and has been, achieved without the need to legalise gay marriage.  After all, they have civil partnerships which confer the same rights in terms of property and finances as married couples enjoy.  What more could they want?

Civil partnerships were a huge step forward for the gay rights movement but I can’t help thinking that they were a bit like the ‘Women’s Bar’ at the golf club.  Fortunately, that is not something you see much of these days but there was a time when, as long as the facility was provided (even if it was through the back door or on the other side of the car park), it was considered that you had complied with the need for equality.  But that is a false equality.  Even if the Women’s Bar is just as grand, what is wrong with the women using the Main Bar (almost never referred to as the Men’s Bar) and participating in that particular part of the club’s heritage?
Uniformity is not always necessary to achieve equality.  That is true. In fact, in some cases a non-uniform approach may be necessary to ensure that equality is achieved.  But the question here is whether the non-uniform approach of providing gay couples with civil partnerships and straight couples with marriage achieves equality.  I submit that it does not.

Is a Civil Partnership Equivalent to a Marriage?


It is not before God, it does not have the same social and historic connotations and, whilst I cannot speak for those who have entered into a civil partnership, my own experience of marriage is something quite profound.  There is nothing quite like referring to my ‘husband’ and being called his ‘wife’.  I’d hate to deny anyone that, no matter who their choice of partner is.
I have seen it suggested that there is a fundamental difference between a gay couple and a straight couple that needs to recognised and accommodated in law and religion.  I do not accept that that stands up in this modern society.

Whilst there may be arguments that marriage, in the traditional sense, is rooted in a need to create offspring and a suitable environment within which to raise them, that is simply not the case anymore.  Not every straight couple who marries chooses to have children and not everyone who has children chooses to get married.

Furthermore, every couple will be different no matter what its composition.  Every two people in a relationship will have their own way of loving each other, expressing that love and building their lives together that will be unique to them.  Even if there is an inherent difference in the way in which two men or two women relate to each other, as compared to a man and a woman, it is a completely arbitrary test and it cannot be considered grounds for determining what legal rights they are entitled to.
Same old, same old.

So what of those challenges that the family practitioner may face when dealing with gay marriage?   Let’s take s.25 of the Matrimonial Causes Act 1975; we know from Lawrence v Gallagher [2012] EWCA Civ 394 that the courts will not be treating the dissolution of a civil partnership any differently to the breakdown of a marriage.   It is possible that there may be various factors to consider that will come up more often in same sex relationships, perhaps in relation to children (IVF or surrogacy disputes), or consideration of contributions to the ‘marriage’ that might require a further re-evaluation of the traditional relationship stereotypes.  In that regard, it may widen the scope of issues that practitioners may have to consider when advising clients but ultimately, there will be few new challenges that family practitioners don’t already face in dealing with the wonderful array of colourful characters, with their quirks, questions and unique relationships arrangements, who come to us for advice on the breakdown of traditional marriages or civil partnerships.

Monday, 11 June 2012

The Infinite Variations of Cohabital Bliss

The recent High Court case of Aspden v Elvy [2012] EWHC 1387 (Ch) has given some additional thought to the seminal decision of the Supreme Court in Jones v Kernott [2011] 3 WLR 1121.  Both cases dealt with cohabiting couples where a dispute as to the ownership of property has arisen.  Where Jones dealt with a property that was purchased in joint names, Aspden dealt with a property that was held in the sole name of Ms Elvy.  Despite this distinction, the judge in Aspden found that, just as in Jones, the common intention of the parties had changed since the initial transfer and made a decision that it considered to be fair taking into account the “whole course of dealings between the parties”.

The property in question was a barn that had been transferred from Mr Aspden to Ms Elvy in 2006.  Despite Mr Aspden’s evidence to the contrary, the judge held that at the time of the transfer barn vested entirely in Ms Elvy.  Over the course of the next three years, Mr Aspden lived on the property in a caravan and contributed a considerable amount of money (£65,000 to £70,000) and physical efforts (with his JCB) into helping Ms Elvy convert the barn.  His asserted that Ms Elvy understood that these contributions were made on the basis that he was gaining an interest in the property and that they would eventually live there together as a family.  Ms Elvy’s case was that there was no intention to live in the property together, that his financial contributions were gifts and his physical contributions so minimal as to be disregarded.

The judge decided that Mr Aspden had gained an interest in the barn and that this should be set at 25%.  The Barn had recently been valued at £400,000.  The judge noted that this figure was “somewhat arbitrary but it is the best I can do with the available material.”
Hard cases make bad law?  There was some suggestion that the decision in Jones did not go far enough in providing clarification on the application of the law in such a case.  There are still calls for parliament to step in and introduce legislation setting out the rights of cohabiting couples. Even if legislation is forthcoming, this will not solve all the problems that arise in cases such as Jones and Aspden.

If one is taking into account the whole course of dealings between the parties then it is difficult to see how one case might relate to another in all but the barest of facts.  The judge in Aspden starts his judgement by saying that “On any view the facts are unusual.”   He went on to consider the various facts that were in dispute between the parties with reference only to limited supporting documentary evidence dating back nearly 30 years.  It was only after he had made his findings that he could consider what a fair result was.  Where such disputes as to facts arise then additional clarification, whether through case law or legislation, will not be of much assistance until those facts have been resolved to the best of the Courts ability and will therefore not avoid a detailed analysis of the case.

We can expect to see more of such cases coming before the Courts.  Not because the law is unclear but because so many couples are cohabiting in preference to marriage.  People are free to make decisions about how they organise their lives and no doubt one couple’s idea of cohabital bliss will differ from that of their neighbours'.  Throw into the mix any number of factors, that may affect the status and value of any property, from children to income, benefits and DIY ability, and “the whole course of dealings between the parties” becomes something as unique to a relationship as fingerprints are to an individual.

The answer is not in further judicial or legislative clarification but in encouraging couples to consider their position early on in their cohabitation and again at any point when those intentions change, and to record it.  This is the best way to ensure that extensive arguments as to the parties’ intentions are avoided.  Having a serious conversation about who will own what in respect of property may not be an attractive prospect to couples contemplating moving in together.  As Ms Elvy said in her evidence “You don’t do that when you are getting on well”.  Well, the case law suggests that such conversations only get more difficult once the relationship has started to deteriorate by which time it may be too late!

Friday, 1 June 2012

No fault divorce? Bring it on!

At the annual Resolution conference, Sir Nicholas Wall said “I am a strong believer in marriage. But I see no good arguments against no fault divorce.”

I couldn’t agree more!  The process of getting a divorce in this country is far too adversarial.

In order to start divorce proceedings within two years of separation, one spouse must point the finger and blame their other half for ending the marriage.  A couple mutually deciding to split will have to make two decisions: 1) who gets to point the finger and 2) what do you accuse the other spouse of?  In such cases, drafting the particulars for the petition can be more a work of fiction than a recital of fact and can do more damage to the often fragile relationship between the parties than any argument over who owns what.

Today, we are ever in pursuit of a happy life and if something no longer makes us happy, we feel entitled to move on and resume the search.
Fallen out of love?  Fallen for someone else? Just want different things from life?

These are not, and never have been, valid reasons to warrant ending a marriage.   Even Henry VIII had to struggle to justify why he should no longer be married to Catherine of Aragon.  Not once did he try to argue that he just didn’t fancy her anymore and he would rather be spending his nights with Anne Boleyn instead.

There have been a significant legislative efforts in recent years, such as the introduction of FDR’s and now MIAMs, encouraging couples to resolve their differences outside of a court room.  How does that sit with a system that requires one party to be condemned as the baddie?  It doesn’t!