Apr 27

From our Head of Family Department, Aaron O'Malley

Posted by gowenstevensadmin on Wednesday 27th April 2016

Gary Lineker has been widely reported in the press over the last few days as being critical of the divorce system in this country. Mr Lineker is reported as proposing a mathematical equation to deal with divorce and he is reported as being critical of manipulative lawyers. I do not want to criticise Gary Lineker but I am critical of the way his comments are being reported.

The Mirror (26.04.16) reported that Gary Lineker managed to file his divorce for £400. The Daily Mail (26.04.16) reported “The online divorce site costs around £400, saving the couple tens of thousands of pounds in legal fees”. This is ambiguous, inaccurate and unhelpful reporting. The Court fee to issue the Divorce Petition alone has recently increased to £550.You cannot get divorced in England today for less than the Court fee of £550 (unless you fall within a fee exemption) but the reports suggest it can be done for “around £400”.

The underlying suggestion in the reports carried yesterday (this article is dated 27.04.16) in the Daily Mail and the Daily Mirror is that divorce lawyers charge too much and that the system needs to be changed. While it may be true that the legal fees generated by firms who represent the wealthy are often surprisingly high this does not help clients get a true picture of the legal marketplace. Indeed Gary Lineker was later tweeting about the inaccuracy of the Daily Mail article.

Here at Gowen & Stevens we always encourage our clients to take a pragmatic and constructive view in order to keep their legal fees in proportion and affordable. We carry out a cost benefit analysis with our clients and if the anticipated cost outweighs the benefit of a course of action we would advise against that action.

It is true that cuts to the legal aid budget have made it harder for people to get access to “justice”. Unfortunately it is those with limited financial resources who may suffer. There are people who have stepped in to fill the gap in the legal market, and there are now quite a few providers of cheap online divorces. A lot of the cheap online providers of divorces do make it clear, in the fine print, that they are not staffed by solicitors. They are unable to give legal advice and keep the costs so low. Buyers beware. The judiciary is even proposing a ban on fee charging “Mckenzie friends” for example, to protect “vulnerable litigants” from unregulated and uninsured individuals.

As lawyers, we are under a duty to act in our client’s best interests. We are highly regulated and rightly so. We are also heavily insured to protect our clients. An agreement reached at the end of a marriage needs to be fit for purpose and properly considered. It is rare that clients will get a second bite of the cherry. It is certainly not something to be dealt with lightly and a mistake can be costly. If we can work in a collaborative manner with a cooperative spouse we will do so in order to keep the costs lower and the relationship as amicable as possible.

Mr Lineker would be wrong to suggest an overhaul of the system because of his own limited experiences. A victim of domestic violence who has limited knowledge of their spouse’s true financial resources would not be well served by the reported proposals especially if that spouse wanted to make every effort to hide those resources.

Is a Mathematical Equation needed as Gary Lineker proposes?

At the moment we do not have a mathematical equation which can be used to determine the financial claims arising in divorce proceedings. When looking at how to divide the matrimonial resources the starting point is currently the Matrimonial Causes Act 1973 at section 25 being the factors that a court should take into account when dividing a married couple’s resources. The factors are:

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

        1. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

the standard of living enjoyed by the family before the breakdown of the marriage;

the age of each party to the marriage and the length of the marriage;

any physical or mental disability of either of the parties to the marriage;

  1. contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be unfair to disregard it;

    1. the value to either of the parties to the marriage or any benefit, for example, a pension, which, by reason of the divorce that party will lose the chance of acquiring.

  1. The weight given to these factors will be different depending on the factual matrix relevant to the client in question. These factors allow for flexibility, which is helpful as there are many different “flavours” of divorcing couples. Case law gives the judiciary the ability to make adjustments to the way that cases are decided. This allows a piece of legislation from 1973 to be adapted to a changing society, for example judges now look differently at the question of ongoing spousal maintenance due to the increasing contributions that women have been making to the workplace since the 1970s.A mathematical equation sounds attractive at first glance but it needs further consideration. In any event the equation would be useless unless all of the necessary and relevant financial information had been provided. A major contributor to increased legal costs at the moment (without the equation) is making sure that all of the relevant financial information is obtained, disclosed and properly valued and understood. Depending on the situation, a lot of work may be needed to make sure the necessary, relevant financial information is obtained either with co-operation from their client or by order of the Court. Is Gary Lineker right to criticise “manipulative lawyers”? There are unscrupulous people in every corner of society and they should be criticised and held to account, however, and importantly, one of our most effective marketing tools is word of mouth referrals by satisfied clients. This firm will have been in operation for 120 years this year. We need our clients to be satisfied by the service that we provide. We in the Family Department and my colleagues throughout the business all work hard to preserve our hard won reputation for a good service at a reasonable price.

Aaron O'Malley

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