Welcome to Intelligent Divorce

The Money and Divorce blog is brought to you by Intelligent Divorce, the new way to get fixed-fee specialist legal advice on splitting your money when you divorce.

Our blog provides illustrated practical guides for those going through the divorce process, plus news on divorce, money and family breakdown.

"I would like to let you know that I found your website so invaluable in my divorce process. I am having to represent myself due to lack of finances and I know for a fact I wouldn't have been able to do it had it not been for your fantastic website. I would recommend it to anyone who find themselves in a similar situation to me." Madeleine

10 November 2011

Two important developments in family law over the course of the last week and a new player in the market….

Mahie Abey

The Family Justice review was published last week. It proposed wide ranging changes to the Family Justice system which, if the government is brave enough to adopt them, are likely to change the face of family law fundamentally - and for the better.

The brutal truth is that this is unlikely to happen. The problem with the report is that the reforms its suggests do not appear to have been costed, and do not fall in line with the cost cutting going on across all government departments at the moment.

What will inevitably happen is that the government will cherry pick bits from the report, and what we will end up with is a family justice system which is even more of a mess than the current one.

I am a pessimist though and I might be wrong - but having been a family lawyer for 18 years now I don’t think I will be.

Also a major decision yesterday from the Supreme Court ( Kernott v Jones) which impacts on cohabiting couples. The law for cohabitees is one of the genuine scandals of modern English law and in desperate need of reform. This decision is a step in the right direction but root and branch change is needed to make the system understandable - let alone fair - for unmarried couples.

The decision dealt with the situation where a property is in the joint names of an unmarried couple but where they have not expressly stated how the ownership is to be shared.

The starting point is that they own the property equally, but this can be overcome by showing that the parties held a different common intention when they bought the house or that they later formed a different common intention

The common intention is to be gleaned objectively from how they acted.

However in cases where the common intention is not clear (which will be the majority of cases) the Supreme Court said that each is entitled to that share which a Court considers fair, having regard to the whole course of dealings between them in relation to the property.

Therefore, and put simply, the Courts will endeavour to reach a fair outcome in such cases.

Believe it or not such was the ridiculous state of the law before this decision that striving to reach fairness n these cases represents progress – we clearly have a long way to go.

Although I applaud this decision as being sensible, the litigation history of this unfortunate and ordinary couple arguing about a house worth around £250,000 was 4 separate fully contested hearings. It took the highest court in the country to come to a final and sensible conclusion. It should not be that way.

The law should be clear so that the outcome can be predicted with a reasonable degree of certainty by lawyers and better still members of the public too – we are a long way from that!

Finally the Co-op announced this week that they were going to launch a family law service in the middle of next year. I think it is a very brave idea for the Co-op to open up their pristine brand to an area of law where the best end-case scenario is having a client who is “not unhappy” with the outcome. They have said they will be recruiting solicitors to do the work, which is a good thing, but what concerns me is that there are a lot of very average family lawyers out there, and the quality of lawyers the Co-op attract. But best of luck to them. Whilst I don’t think big brands are the future they will certainly be part of the future fabric of legal services. Whether they will be a force for good remains to be seen.

As an entirely unrelated postscript I went to Lewes on Saturday for their bonfire celebrations – truly spectacular and one of those wonderfully English things that everyone in the country should make an effort to see once in their lives. It will exceed all your expectations – unlike the Court system which regularly does not!