A way with words: The language of family law

The words we use are important. This is especially so in the world of family law.

The interpretation and meaning attributed to certain words can influence the outcome of a specific case as well as how the law is understood by the public and implemented generally by the judiciary.

Words can be tricky. This is one of the reasons why we have rules for interpreting statute so that the Courts are not held to the strict ‘letter of the law’ if the result would be absurd or clearly not what was intended by Parliament. Some words are more important than others and, as the law and society evolve, so too does the language of the law.

People’s understanding of words used in family law can be influenced by similar language from other jurisdictions. This can lead to confusion about rights in this country particularly when engaging in legal proceedings. The problem can be compounded when these terms are mis-used in the press and media.

Below are a few examples of the importance of certain terms in family law and how sometimes they are not used correctly.

CUSTODY

Many people talk about ‘custody’ when they discuss matters relating to children. They say “I want to have full custody of my children” or “I’m in a custody battle with my ex.” Yet the word custody is not part of family law in England and Wales. It was removed in 1991 because it was considered that the term conveyed a possessive, parent focussed message that gave the impression that one parent, the parent with custody, was in some way more important than the other. Custody was initially replaced the terms ‘residence’ to describe with whom the child would live with and ‘contact’ to describe the time that child spent with the non-resident parent.  These terms themselves eventually became subject to similar scrutiny and criticism.

The current terminology, set out in Section 8 of the Children Act 1989, refers to ‘child arrangements’ which can be broken down into ‘lives with’ orders and ‘spends time with’ orders. This language puts the focus very firmly on the child which is certainly a positive development. In addition, a child arrangements order can specify that a child ‘lives with’ both parents removing the perception that one parent has achieved a greater status which can create conflict. This could be appropriate when, for example, there is a shared care arrangement where the child spends a significant amount of time with each parent.

PRIMARY CARER

The term primary carer in children proceedings is used to describe a parent who undertakes the majority of care. It can be problematic with parents vying for this coveted status even before separation as they believe that it will give them the upper hand in any dispute. They may think that the ‘primary carer’ will be viewed more favourably by the courts and this will ensure that they will have control over the child and the time they spend with the other parent. It can sadly be perceived as leverage in financial disputes.  Witness statements can include detail about how involved that parent is in a child’s day to day routine and, conversely, how limited the role of the other parent has been.  This approach creates conflict, with parents fighting about who comes out on top rather than on what is best for the child going forward. It would seem that ‘primary carer’ may have become the new ‘custody’.

Such an approach is not child focussed.  The focus of the parents should be on what arrangements will best meet the needs of a child going forward. This could be very different from the status quo during the relationship. The court is obliged to start with the assumption that it will benefit a child if both parents play a meaningful role in that child’s life and so an arrangement which significantly limits the role of one parent is unlikely to be approved unless there is a good reason for this. This means that parents may have to accept that compromises will need to be made life after separation may look very different.  It may be that, for some families, there will be no ‘primary carer’.

JOINT LIVES

A ‘joint lives spousal maintenance’ order is where one spouse must make periodical payments to the other until one of them passes away. It is an order which the court can make in financial remedy proceedings. Such orders used to be more common although these days they are becoming much harder to justify with the focus shifting to encouraging financial independence within a specified time-frame and thus achieving a clean break.

The term can be deceptive. This is because it can be varied and, in fact, the expectation that that spouse will strive to achieve financial independence remains even if such an order is made. In reality, there will be very few cases that justify a true ‘joint lives’ order being made. Those will be cases where the court can say with certainly that the receiving party has no chance of achieving financial independence in the future.

A joint lives order can also be made when there is too much uncertainty as to when a spouse may achieve financial independence. It is, however, important to remember that the expectation is still there and, if a party does not take sufficient steps to increase their earning capacity then they could find themselves in financial difficulty if their former spouse applies for the payments to be brought to an end. It these circumstances, might it be better to refer to an ‘indefinite’ order rather than a ‘joint lives order.’

COMMON LAW WIFE/HUSBAND/MARRIAGE

There is no concept of ‘common law marriage’ in the law of England and Wales.  If you hear this term being used then it is wrong.  If you are using this phrase then please stop! It perpetuates a myth that someone is entitled to something they are not and can leave people in a dire financial position if their relationship ends. Whilst there are still powers for the Court to make financial orders in limited circumstances, there is no codified regime of cohabitee rights akin to that available on marital breakdown.

Further thoughts:

·         Do you agree with the above?

·         Are there any other family law terms which you consider are being misunderstood or should be reviewed?

If Family Law were a Sporting Event...

Scotland v England

I thought I’d have some fun with the blog this week in light of the sporting spectacular that has taken over London.

The nation may be united behind Great Britain as the greatest show on earth gets underway, but within our borders a gap has opened up in the family law arena with Scotland leaping ahead of rivals England (and Wales).

Round One: Cohabitation

The recent case of Gow v Grant which saw the Supreme Court consider the property rights of cohabitants in Scotland, has highlighted the protective laws that cohabitants in Scotland enjoy (and emphasized the mire of uncertainty south of the border).  Yes, there is talk of reform, but that is no match for Scotland’s Family Law (Scotland) Act 2006 with section 28’s game winning performance.  Baroness Hale seems to have taken up the mantle of team coach for England telling players that “lessons can be learned” from the opponents tactics.  For the moment though, the advantage most definitely lies to the north.  It’s Scotland 1 England 0.

Round Two: Gay marriage

The announcement this week that Scotland plans to legalise gay marriage puts the Scots even further ahead in these Family Law Games!  England’s hopes of legalising gay marriage rest with the athletic abilities of Mr Cameron.  In a recent statement no one could deny that the PM showed that he has the determination and the passion to go all the way.  But he will need more than courage of conviction to overcome the significant hurdles ahead which include a challenging head-to-head bout with the Church of England and the constant distraction of a shaky coalition.  Perhaps he is looking to play the long game, and regain some points for elegance of execution?  After all, England will have the benefit of watching Scotland go first through the process? If they slip up, England could capitalise on that and learn from their errors.  For the time being though, it is Scotland 2 England 0 after round two.

European Qualification

Should Scotland succeed in being crowned the UK Family Law Champions (I’m still working out the details), how might they fair on a European stage?

The current leaders appear to be The Netherlands, who trail-blazed the legalisation of same sex marriage back in 2001.  Other nations including Norway, Portugal, Spain, Sweden, Iceland, Belgium and Denmark have followed since then.  With its recent announcement Scotland might be trailing a little but its cohabitation laws, which have been in place since 2006, might help to boost their rankings.

In the mean time, I suggest we sit back and watch the real action unfold in this great city.  Come on team GB!

On your marks, get set…vote!

Results from last week’s poll...

A big thanks to those who voted in the first ever Emma's Family Law Blog poll!

The most popular response (50%) was from those who were 'not so recently qualified' who supported  the Supreme Court’s decision in Jones v Kernott.  This suggests that opinion within the legal profession is not necessarily divided in such a way as my initial observations suggested.  Good to debate these things!

Don’t forget to vote in this week’s poll!

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.

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!