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Divorces declared void after being issued within one year of marriage

Sir James Munby’s judgment in Baron & Others (4 Defective Divorces) hit the headlines recently, but not actually because of the subject-matter of the case (the headlines, as I mentioned here, were to do with Sir James’s comments regarding the inefficiency of some Regional Divorce Units).

What the former President of the Family Division was actually considering in the case was applications by the Queen’s Proctor for the setting aside of divorce decrees in four different cases, on the ground that the petitions had been presented before the expiration of the period of one year from the date of the marriage. As I explained here recently, the Queen’s Proctor is an officer of the judiciary, who may intervene in divorce proceedings “to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued”. (The case referred to in that post was one of five, the other four being considered in the Baron case).

To explain for those who are not aware, the present law forbids the filing of a divorce petition before the expiration of the period of one year from the date of the marriage. Accordingly, any petition filed before then is null and void. And this, it seems, will not change when (and if) the proposed no-fault divorce is introduced, as the government intends to retain this ‘one-year bar’, which it believes “serves a useful purpose to underline the importance of commitments made at the time of marriage”. Accordingly, if the government gets its way this case will still be relevant when the law on divorce changes.

I’m not going to go into the legal niceties of whether failure to comply with the one year rule is a matter that can be corrected by the court, or whether it means that the petition is a nullity (you can find the details in paragraphs 4 to 9 of the judgment). Suffice to say that Sir James found in favour of the latter.

So to the four cases.

In the first case the parties were married on the 23rd of August 2012. The wife issued her divorce petition on the 28th of May 2013. No one spotted the error and the divorce eventually went through (i.e. to decree absolute) in August 2018. As Sir James said, “the case admits of no possible argument”. Accordingly, he declared the divorce void.

In the second case the parties were married on the 28th of May 2015. The wife issued her divorce petition on the 20th of May 2016. No one spotted the error and the divorce went through in January 2017. Again, said Sir James, the case admitted of no possible argument. Accordingly, he also declared this divorce void.

In the third case the parties were married on the 26th of July 2014. The husband post-dated his petition 27th of July 2015, but sent it to the court on the 17th of June 2015, and the court issued it on the 22nd of June. Without going into the details, the divorce was made absolute on the 11th of October 2016. Once again, Sir James found that the case admitted of no possible argument, and declared the divorce void.

The fourth case was slightly different. The parties were married on the 16th of January 2015. The wife issued her divorce petition on the 13th of January 2016. The divorce went through in September 2016, but the problem was then identified, and the court set aside the decrees. A fresh petition was issued, and fresh divorce decrees made. Unfortunately, there was an administrative error by the court in that it failed to properly process the fresh petition. However, Sir James held that this did not nullify the ‘new’ divorce, which remained valid.

In all of the cases the parties had issued new petitions for divorce, in order to preserve their positions. In each of the first three cases Sir James went on to grant a decree nisi, and to abridge the time for the decree absolute, from six weeks to four days in the first two cases, and to three weeks in the third case. The new petition in the fourth case was struck out.

The moral from all of this, of course, is to make sure that you comply with the one year rule. It’s an easy trap to fall into, but one that can have serious and expensive consequences, not least the possibility of bigamy if a party remarries when they were not actually divorced.

You can read Sir James’s full judgment here.

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Author: John Bolch

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Micronations

Principality of Sealand

Starting your own country

Although my friends and acquaintances have a wide range of political leanings and opinions, I’ve never met anyone who agrees with and supports every single government policy and regulation—in this country or any other. The very nature of democratic government makes this virtually impossible, and I think it’s fair to say that every legislator could produce a long list of things they might wish to be different. We all accept certain laws and taxes in exchange for the considerable benefits government provides in the way of economic structures, a justice system, education, public works, national security, and so on. For most of us, that’s a reasonable trade.

But what if you could tailor a government to your exact specifications? Exercise strict control over the currency, imports and exports, immigration policies, defense programs, foreign relations, and everything else? What if you could tailor laws to support those things you care about most and disallow the things you’re against? What if, in fact, you had your very own country, in which you—along with, perhaps, your family, friends, or business associates—ran the whole place from top to bottom?

Numerous individuals and groups have attempted to do just that: start their own tiny countries. None of the attempts to do so in the past century has resulted in an entity that’s actually recognized as a country by the world’s other sovereign nations. But a number of so-called micronations around the world are run as though they’re autonomous nations, their residents and leaders holding onto a faint hope that one day they may finally be legitimate members of the international community. In many cases, they even issue stamps, coins, and passports, and have a national anthem. Wikipedia lists over 80 former and current micronations. There’s also a book called How To Start Your Own Country by Erwin S. Strauss, which delves into many of the issues you’d have to deal with if you decided to try.

Finding a New World

The first problem you’ll notice if you’re contemplating starting your own country is that all the world’s land is already spoken for. There’s no unclaimed territory left, and for this very reason, existing countries tend to be extremely protective of their real estate. So you could declare your apartment, farm, or private island to be an autonomous territory (as others have in fact done), but seceding isn’t that easy. If the jurisdiction from which you’re trying to separate doesn’t change its laws to accommodate you—and crucially, if it has more guns and soldiers than you do—you’re pretty much out of luck. A few groups have attempted to create land for their micronations by building artificial islands of one kind or another or by declaring a ship floating in international waters to be their territory. Apart from the logistical and financial issues of such an approach, there’s still that pesky problem that if no other nation recognizes your new entity to be a country, then for all practical purposes, it isn’t.

Those details aside, you’ve got to convince enough people to inhabit your country to make it viable. You’ll need a government and security forces, naturally, but also some means of providing all the goods your population will need. If your nation can’t produce enough food, clothing, transportation, and so forth from its own resources, you’ll need to import it—and to do that, you’ll have to have a source of income. Income could, of course, come from exported goods and services, but you’ll still need resources of some sort and a reasonably large labor pool. Oh, and unless you want your citizens to go abroad for their schooling and medical care, you’d better have a well-thought-out educational system and at least one hospital. Add to that courts to punish crimes and resolve disputes; infrastructure for electricity, water distribution, waste processing, and communications; and a transportation system, just to name a few of the many obvious features your nation will require, and you can begin to see why more people don’t start their own countries.

Minor Victories

And yet, despite all these complications and many more, a few micronations have managed to survive for decades without being invaded and shut down by another country. Here are a few prominent examples:

  • Sealand: During World War II, Britain built a large gun platform in the North Sea, just outside its territorial waters, to defend itself from German aircraft. They abandoned it after the war, and in 1967 it was occupied by Paddy Roy Bates and several of his associates. Bates declared the platform a sovereign nation called the Principality of Sealand and named himself Prince Roy I. In 1987, Britain extended its territorial waters past where Sealand sits, but although the British government doesn’t officially recognize Sealand, they haven’t tried to take it over either. Bates died in 2012 and his wife died in 2016. His son, Michael, is now nominally the ruler, though he doesn’t live on Sealand. But one or more caretakers apparently do still live on the platform; the nation’s primary activity and source of income appears to be selling coins, stamps, and titles of nobility.
  • Principality of Hutt River: This farm in Western Australia, formerly known as Hutt River Province, claims to have seceded in 1970 after a long-running dispute involving wheat quotas. It was led by the farm’s owner, Leonard George Casley (or Prince Leonard I to his subjects), for 45 years until 2017, and died in 2019. The principality is now ruled by Casley’s youngest son, Prince Graeme. Like all micronations, it’s not officially recognized as a sovereign state and its legal status is quite ambiguous, despite some evidence that Australia at one point regarded its secession as legal. The Principality of Hutt River has about 20 residents, but has issued passports to thousands of people around the world.
  • Molossia: The Republic of Molossia comprises a small patch of land in Nevada and another in California, referred to as the Desert Homestead Province. It was founded in 1977 and still has only 34 citizens (“including dogs”), but it nevertheless claims to be working toward eventual recognition as a true nation.
  • Talossa: The Kingdom of Talossa was created in 1979 in Milwaukee, Wisconsin, and originally consisted of the bedroom of its then-14-year-old founder. Today, Talossa claims an area of 13km2 (5 square miles) and a population of 255—not to mention its very own language.

Not in My Ocean

Other attempts, though, have been less successful. Such was the case with a micronation called the Republic of Minerva. In 1971, a Las Vegas millionaire named Michael Oliver decided to create his own island by dumping barges full of sand onto a shallow reef in the Pacific Ocean, not far from Fiji. The newly formed Republic of Minerva declared independence in letters sent to all the nearby nations, which soon gathered to sort out what they thought about suddenly having a new neighbor. The result of that meeting was a small military force sent by Tonga to evict the Minervans. Tonga annexed the new island, but now it’s apparently fully submerged, so its status as a micronation is entirely moot.

But not all micronations are truly attempts to create geographically distinct, sovereign countries. Many people have declared some piece of land to be a micronation for comedic or artistic reasons, as a form of political protest, or to generate publicity—without ever truly intending to make it a permanent, sovereign nation. And some micronations (such as Wirtland) have no territory at all, but exist only on the internet; some of these serve as virtual real estate in role-playing games, while others are themselves simulations of real societies in some fashion or another. Real or virtual, micronations feed that common but quixotic urge to make and live by one’s own rules. One of them might eventually succeed, but sooner or later, a citizen of even the most idyllic micronation is bound to feel that something better can be created. Nanonations can’t be far behind.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on September 20, 2006.

Image credit: Ryan Lackey from San Francisco, CA, US [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)]


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Author: Joe Kissell

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What is sole custody?

Divorce is a difficult life event. However, it can mean more than just a failed marriage. It could mean the splitting of a family. When children are involved, it is important to think about what is best for the child. No two families are alike, and the needs of each parent and child are different. In matters where domestic violence was present or there are safety concerns, joint custody may not be the most suitable. In these situations, seeking sole custody may be in the best interests of the child.

While it is not as common, sole custody is often sought in matters that involve domestic violence, child abuse or substance abuse problems. Unlike joint custody where each parent has legal and physical custody of the child, sole custody awards both legal and physical custody to one parent while the non-custodial parent has neither legal nor physical custodial rights of the child.

Sole legal custody means that one parent has the rights and responsibility to make major decisions regarding the child’s welfare. This commonly includes decisions regarding education, medical care, religion and emotional and moral development. On the other hand, sole physical custody means that the child will reside and be under the supervision of just one parent. However, in these cases, the non-custodial parent may be able to obtain reasonable visitation with the child so long as it is in the best interests of the child.

Child custody matters can look very different from one family to the next. In some cases, parents can work together to reach a fair agreement. In other cases, disputes arise. No matter the situation or if you seek joint or sole custody, it is important to be aware of your rights and what steps you can take to protect them and the interests of your child.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Not one in ten: Why family dispute numbers matter by Families need Fathers

Today we welcome Michael Lewkowicz. Director of Communications at Families need Fathers to the Stowe Family Law blog with the first in a series of exclusive articles.

“Over the few years, I have attended various Cafcass events – open board meetings, conferences, consultations. Occasionally their chief executive, Anthony Douglas, ‘clarified’ that whilst there were tens of thousands of court applications for Child Arrangements, they represent just 10% of family separations with 90% resolving things out-of-court. ‘Great’ one might have thought, ‘so it’s not such a big issue for most separating families’. The prevailing narrative was that many of those were then resolved adequately before full proceedings. Some came to mutual agreements in early proceedings and only a very small proportion, the story went, perhaps under 5% formed the ‘difficult’ cases that involved ‘high conflict’ – the cases that nobody could really “expect” to do anything about. The message was not quite ‘well that’s alright then’, but it seemed to be heading in that direction.

It was something of concern, but never became a priority and all those thousands of dads, mums and grandparents coming to Families Need Fathers and family lawyers for help were at best unlucky to be faced with confrontational ex-partners or perhaps mutually confrontational or, worse still, the ones made to feel responsible for the conflict.

The trouble was, that visits to our support meetings did not seem to reflect this. It was affecting too many people and, guess what, many of them were lovely people who would not say ‘boo to a goose’.

More troubling still was that the numbers, that the ‘small minority’ narrative was based on, simply did not ring true. I’m no mathematical genius, but if there are some 50,000 court applications each year, less 30% return cases leaves 35,000 new applications. If these represent 10% of separations, then the implication is that there are some 350,000 break-ups a year. Assuming an average of 2 children per case (Cafcass average figures) implies 700,000 children involved. Since the number of births in England and Wales in 2017 was 679,106 the figures suggested that every single family separated before their children left school. Spot a problem? We did.

Over subsequent months we raised this with Cafcass’ newly appointed Director of Strategy, Teresa Williams. The great news was that she too thought this was odd. Some months later I bumped into Ms Williams again and was very reassured when she said Cafcass were re-calculating this and were getting nearer the reality – which was over a third of cases! In fact, Cafcass later reported that the figures looked like being 38%, a nearly four-fold increase over the widely quoted previous value!

Now we had, in the absence of detailed data, made some estimates of our own using a range of disparate sources and came up with a figure of slightly over half. Since then Cafcass, at their most recent open board meeting, told us that about a third of cases were families returning to court.

We knew returns to be frequent, but this was higher than we imagined. We speculate that returns have grown in recent years since the guidance was issued exhorting judges to end proceedings within six months. This is good for court statistics showing that cases have been disposed of quickly but can lead to some cases being prematurely closed.

Taking all this into account, our original estimate seems not to have been that far off the mark. The new Cafcass figure certainly cuts right through what now seems to have been a surprisingly long run of what might these days be considered ‘fake news’. The President, no not Trump, but of The Family Division, Sir Andrew McFarlane, observed the shift in presumed wisdom in his speech last week to The Resolution Conference.

Sir Andrew told the conference that this is

“a far cry from the previous comfortable urban myth based on a figure of 10%. It indicates a major societal problem…”.

The importance of understanding that the true proportions of families going to court is almost four times greater than previously thought was also brought into sharp focus just a few weeks ago at the APPG on Legal Aid. We drew attention to the long-term opportunity to diminish the reliance of separating parents on family courts from a up to half of cases to around the level of 2% – that was being achieved in Sweden. The minister, Lucy Frazer MP, responded by ‘correcting’ us and reciting the 10% figure from the old narrative that the opportunity was not really that big nor worth the government prioritising it. My brief interjection to the minister received a frosty response from the chair – our apologies for this.

We have now written to the minister with an update and we hope Cafcass will have updated her too. The desperate need for reform of family justice is now even clearer. Unquestionably, for tens of thousands of needlessly damaged children and parents, that reform is very urgent.”

Families need Fathers (FNF)

FNF is a leading UK charity supporting dads, mums and grandparents to have personal contact and meaningful relationships with their children following separation. They offer information, advice and support services on how to provide the best possible blend of both parents in the lives of children.

You can find further information on the Families need Fathers website.

The post Not one in ten: Why family dispute numbers matter by Families need Fathers appeared first on Stowe Family Law.


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Author: Stowe Family Law

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The significance of pensions in high net worth divorces

Pensions are often of great significance in divorces, more so than many divorcing couples realise. Even in cases involving quite modest assets, pensions can be one of the most valuable of those assets, usually only exceeded in value by the matrimonial home. However, pensions can be even more significant in high net worth divorce cases, as recent research has shown.

The research was carried out by the wealth planning company Succession Wealth. They analysed the Office for National Statistics’ Wealth and Assets Survey data and the number of divorces in England and Wales, to estimate the makeup of the assets of divorcing couples whose net financial wealth is £1 million or more.

They found that that 550 couples with net financial wealth of one million pounds or more each will divorce this year, and estimate that collectively these individuals have around £1.91 billion of net wealth, equating to an average of about £3.48 million per couple.

And so to the breakdown of that wealth. This was divided into four categories: financial wealth, property wealth, physical wealth and private pension wealth. I haven’t seen an explanation of the first three, but I assume ‘financial wealth’ means cash and savings-type assets, such as bonds, shares and so on, ‘property wealth’ means real property (i.e. land and buildings) and ‘physical wealth’ means other valuable physical assets, such as cars, jewellery and paintings.

The breakdown was as follows: financial wealth represented 20% of the assets, worth on average about £712,000, property wealth represented 31% of the assets, worth on average about £1,075,000, physical wealth represented 5% of the assets, worth on average about £186,000, and private pension wealth represented a whopping 43% of the assets, worth on average about one and a half million pounds. In other words, private pension wealth is by some margin the most significant asset of many couples whose net financial wealth is £1 million or more.

These figures may not come as a surprise to an experienced family lawyer used to dealing with high net worth cases, but I’m sure they would raise a few eyebrows elsewhere. How many ‘non pension owning’ spouses in high net worth cases will be aware of this? I suspect not many. That is why it is essential that they obtain full disclosure of the other spouse’s wealth. And that does not just mean accepting what the other spouse discloses. All too often a spouse with substantial financial assets will be less than forthcoming in disclosing them. That is when it may be necessary to employ the services of a forensic accountant (see below), who can help to uncover those assets.

Of course uncovering the true value of pension (and other) assets is only half of the story. The other half is working out how those assets should be divided between the parties.

Thus the question is: if you are the ‘non pension owning’ spouse, how do you receive your fair share of pension assets? Well, there are essentially three ways: offsetting against other assets, pension sharing orders and pension attachment orders. Offsetting, at its simplest, involves the spouse with the pension keeping it, but the other spouse being compensated by receiving a greater share of other assets. Pension sharing means transferring the pension ‘pot’, or part of it, from one spouse’s pension to a pension in the name of the other spouse. Pension attachment orders redirect all or part of the pension benefits to the other spouse, when the pension comes into payment. Which of these options is right for you can be a complex question. (For further information regarding pensions, see here.)

The moral of all of this, of course, is to get the best possible advice when you divorce, especially if the assets of the marriage are significant. And that does not just mean legal advice. It is also necessary to have the best financial advice. That is why Stowe Family Law have their own specialist in-house team of forensic accountants, which is one of the reasons why they are experts in high net worth divorce cases.

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Author: John Bolch

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Shipping Container Architecture

Shipping containers as apartment buildings for students, Le Havre (France, Normandy)

Ship-shape design

When I lived in San Francisco I saw cargo shipping containers in use fairly regularly—sometimes being hoisted by cranes in the busy Port of Oakland, other times filling the decks of gigantic freighters passing through the Golden Gate. They were such a common sight that I almost stopped noticing them, although if I did, they made me think of the immense scale of the global economy, and provoked curiosity about what kind of goods they might be carrying. I didn’t think of shipping containers themselves as very interesting. But for the past few decades, many architects and builders have looked at shipping containers as not only a means to transport goods, but as a source of building material. Whether intended for private homes, schools, markets, or multi-unit complexes, repurposed shipping containers have become a unique way to bring exciting design and environmental concern into everyday life.

Shipping News

The use of modern shipping containers first developed in the mid-fifties in Denmark, Canada, and the United States. These containers soon became invaluable, as their use streamlined the transportation of goods between ports and inland destinations via railroad cars and large trucks. They were created to be easily stackable and made sturdy to withstand wind and water, and these same attributes are what make shipping containers so attractive to architects and builders.

In addition to their sturdiness and flexibility, shipping containers have other benefits. Designers looking for more environmentally friendly construction methods can practice recycling by using decommissioned containers from shipping companies. These containers are also much cheaper than standard building materials (sometimes by as much as half), and with their use, buildings can be assembled in much less time, with lower labor costs.

Another advantage to shipping containers is that they are easy to transport, having been designed expressly for that purpose. This can facilitate their use in disaster situations, allowing repurposed containers to arrive quickly in areas where temporary housing is desperately needed. It also means that containers can be worked on in one location, and then easily transferred to the actual building site in another area when needed.

Contain Yourself

While building with shipping containers may make economic and environmental sense, who would want to live or work in a windowless metal box? Designers have gotten around this limitation in a variety of ways, most notably by incorporating containers into larger construction projects, cutting and shaping the existing containers as necessary. Some of the first and most well-known projects of this kind were built by the Container City company in London. Container City I is located at Trinity Buoy Wharf in London’s Docklands district, and comprises 12 work studios and three live/work apartments. Amazingly, it only took two days to install in 2001 (after being built off-site for five months), and 80% of it is made from recycled material. Following the success of Container City I, Container City II was built adjacent to it in 2002. Notable for its ziggurat shape and bright colors, Container City II hosts 22 studios on five floors. Container City now offers their services on other projects such as schools and office buildings, taking these projects from feasibility studies, through design, fabrication, and installation.

On a smaller scale, there are private homes designed using multiple containers. Zigloo Domestique, built using eight containers, was created by designer Keith Dewey in Victoria, British Columbia. Mike and Shawn McConkey built their dream home out of three shipping containers on a piece of land in unincorporated San Diego County.

On the larger end of the scale, shipping containers have also been used to create enormous public marketplaces, like the open-air Seventh Kilometer Market in Odessa, Ukraine. Covering 170 acres, the market is made up of hundreds of shipping containers, with an estimated 150,000 customers a day. The Dordoy Bazaar in Bishkek, Kyrgyzstan, is constructed out of an estimated 30,000 shipping containers, and draws customers and merchants from Russia, Uzbekistan, Kyrgyzstan, Kazakhstan and China.

Yes Cargo

Because of the growing interest in container homes, there are now numerous companies selling pre-made container homes, ready to be delivered and installed at your chosen location. These usually consist of one or two containers, but there are many different configurations that are possible. You can see some current options on the Curbed and Dwell websites, including one house that you can order from Amazon.

With its economic, environmental, logistical, and practical benefits, shipping container architecture provides a compelling alternative to conventional building methods, and seems poised to continue to gain in popularity in the coming years.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on May 21, 2007.

Image credit: Philippe Alès [CC BY-SA 4.0], via Wikimedia Commons


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Author: Morgen Jahnke

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A call for cohabitation reform

The problem with the current law on cohabitation is that there isn’t one. Despite popular belief, there is no such thing as a common law marriage (it has not existed since 1753) and separating couples have very minimal legal rights or protection.

This often leads to the more financially vulnerable party potentially facing hardship and difficulties. Coupled with the fact that cohabitation is the fastest growing family type in the UK, it is time this inequality is addressed.

So, we asked Sushma Kotecha, Managing Partner from our Nottingham office to join us on the blog to add her voice to the continuing calls for cohabitation reform.

“Almost half of us mistakenly believe that common law marriage exists. The findings from this year’s British Social Attitudes Survey carried out by The National Centre for Social Research revealed that 46% of people surveyed are under the false impression that cohabiting couples form a common law marriage. This figure remains largely unchanged over the last fourteen years (47% in 2005) despite a significant increase in the number of cohabiting couples.

Cohabitees cannot rely on UK family courts. As it currently stands, there is very little legal protection for cohabitees who separate and need to resolve disputes that may have arisen in respect of property, finances and/or children. The law in this area is very complex and can lead to unfair outcomes.

For this reason, more people are turning to Cohabitation/Living Together Agreements to record the financial arrangements that are to apply in respect of their cohabitation and what should happen if their relationship fails.

Cohabitation/Living Together Agreements are contracts that can include provisions dealing with income, property, children, wills and legacies and many other issues that may be relevant.

Anne Barlow, Professor of Family Law and Policy at the University of Exeter said:

“Our data clearly shows that almost half of us falsely believe that common law marriage exists in England and Wales when, in reality, cohabitation grants no general legal status to a couple. Cohabiting couples now account for the fastest growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, the policy has failed to keep up with the times.

The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”

Notwithstanding a call for reform from lead bodies and Judges, the government has resisted implementing proposed changes that would make the system fairer for separating cohabitees.

Lord Marks’ Cohabitation Rights Bill has had its second reading and Resolution (a body of specialist family lawyers and other professionals) will be liaising with Lord Marks about laying the bill again in the next parliamentary session.

When this was debated in Parliament in 2014, the number of people cohabiting in the UK had risen from less than 3 million in 1996 to 5.9 million. The figure is now 6.6 million, and this rate of increase is not abating.

The Office for National Statistics’ 2018 figures shows that cohabiting families are the fastest growing family form and a quarter of all children are growing up in cohabiting families. About 40% of cohabiting couples have children together while cohabiting. The Bill is aimed not just at those couples but at their children, who stand to suffer from their parents break up.

If you intend to cohabit or are currently cohabiting and wish to regulate your rights in the event of a relationship break up to avoid the pitfalls and injustice of the existing laws, please contact our Client Care Team here to arrange an initial no-obligation options call with one of our lawyers.

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Author: Sushma Kotecha

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Husband succeeds in recovering painting, despite wife’s lies

As I have said many times, both here and to my own clients when I was practising, getting a final order is often only half of the battle when it comes to sorting out financial arrangements following divorce. The other half comes in actually enforcing that order.

Despite the importance of enforcement, we don’t see an awful lot of cases about it reported. However, we did get at least a glimpse of it in the case ET v ST, which was decided by Mr Justice Mostyn in April last year, but which only recently appeared on the Bailii website. The case is also of interest because of the wife’s attempts to thwart the enforcement action.

The case revolved around the husband’s attempts to recover a painting by the artist Caziel. The painting was amongst the contents of a property that it had been agreed should be retained by the husband. That agreement was incorporated into a consent order in July 2011.

For the benefit of those, including myself, who are not art experts Caziel was, according to Wikipedia, “a Polish artist who lived and worked in Paris during the inter-war period and who worked alongside a number of important figures of the School of Paris, including Pablo Picasso”. Despite that illustrious connection, I don’t think his paintings are especially valuable – a quick internet search reveals them being sold for anything between a few hundred pounds and five thousand pounds. We are not told how much the painting in this case is worth, although obviously it could also have had sentimental value to the husband.

By October 2017 the painting had not been delivered up to the husband by the wife, and the husband therefore commenced enforcement proceedings.

On three occasions the wife had told the court that she had not seen the painting for some years, and implied that the husband had taken it. Two of those statements were made under oath from the witness box, and one in a written witness statement endorsed with a statement of truth. However, in another witness statement in January 2018 the wife admitted that her earlier statements had been untrue – she did know the whereabouts of the painting.

Following this, the painting was recovered by the husband, although not before the husband had issued an application for the wife to be committed to prison for breach of the order.

There still, however, remained the issue of the husband’s costs, both of the enforcement action and of the committal proceedings. In addition to this, the husband sought permission from the court to proceed with committal proceedings against the wife in respect of both her false witness statement and her lies under oath. These issues fell to Mr Justice Mostyn to determine.

Dealing with the committal application first, Mr Justice Mostyn refused permission for the husband to proceed. The reason for this is that he considered that the husband had a better avenue available to him: criminal proceedings against the wife for perjury, which carry with them a maximum prison sentence of seven years. We are not told whether or not the husband chose to take this course.

As to the issue of costs, Mr Justice Mostyn felt it unarguable that the husband should recover his costs relating to the enforcement action. As to the committal application, Mr Justice Mostyn felt that the husband had pursued this “in a very single-minded way”, despite the fact that he had achieved his primary aim, which was to recover the painting. Accordingly, Mr Justice Mostyn only ordered the wife to pay 50% of the husband’s costs in relation to the committal application.

An interesting little case, illustrating quite typical enforcement issues: one party having to go back to the court to recover an asset that should have been delivered to them, and the other party lying to the court in an attempt to thwart them. The case is also perhaps an illustration of the perils of being over-zealous when it comes to enforcement: one can fully understand the husband’s annoyance at the wife’s lies, and his determination that she should not ‘get away’ with them, but in the end his actions cost him money that he was not able to recover.

You can read the full judgment here.

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Author: John Bolch

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Tulipomania

Tulips at an Amsterdam flower market

The quest for the perfect tulip

In his 1850 novel The Black Tulip, French author Alexandre Dumas (père) describes a competition, initiated by the Dutch city of Haarlem in the 1670s, in which 100,000 florins (150 florins being the average yearly income at the time) would be given to the first person who could grow a black tulip. Although Dumas’s story is fictional, it is based on a real phenomenon that took place in the Netherlands in the early 17th century.

Between 1634 and 1637, the Netherlands (then called the United Provinces) saw the rise and fall of many fortunes due to an intense period of tulip trading. Now described as tulipomania, or simply tulip mania, it involved the wild overvaluation of certain types of tulip, leading to the eventual crash of the inflated market.

In Rare Form

First cultivated in the East, tulips were brought to Europe from the Ottoman Empire during the 16th century (the name tulip is derived from the Turkish word for turban). Soon after their introduction, tulips became popular in various countries, but nowhere so much as in the Netherlands. There are many theories as to why the Dutch developed such an avid interest in tulips; in his book The Botany of Desire, Michael Pollan suggests that the bleakness of the Dutch landscape may be one reason colorful tulips were so quickly embraced. He observes that “what beauty there is in the Netherlands is largely the result of human effort…” making the cultivation of beautiful blooms an attractive pastime.

Another reason for their popularity was their relative rarity. While tulips can be grown simply from seed, there is no guarantee that the resulting flowers will resemble their parent plants at all. The only way to obtain a particularly prized bloom is to grow one from an offset, which Pollan describes as “the little, genetically identical bulblets” found at the base of a tulip bulb. The process of cultivating offsets was a lengthy one, adding to the scarcity of tulips. In addition, the most valued tulips of the time were ones said to be “broken,” that is those tulips with bright flame or feather-like patterns on their petals. The most famous of this type of tulip was the Semper Augustus, a white flower marked by brilliant red strokes. These tulips produced fewer offsets, making them even rarer; although it was not known at the time, the “broken” effect was caused by a virus that weakened the plant.

Gone to Seed

The genesis of tulipomania is usually ascribed to the 1593 arrival in Leiden of Carolus Clusius, a plant collector and gardener. Bringing with him some tulip bulbs he had acquired while working as the director of the Imperial Botanical Garden in Vienna, Clusius proceeded to cultivate beautiful specimens from them, attracting attention from his new neighbors. However, Clusius was reluctant to part with his bulbs, refusing to sell to eager buyers. Frustrated by his refusal, thieves helped themselves to his garden, stealing many bulbs and selling the seeds they gained from them. These seeds were eventually distributed throughout all the Dutch territories, leading to the increased propagation and variation of tulips. Those lucky enough to grow a particularly beautiful bloom from seed could profit greatly from the sale of its offsets, making tulip cultivation an increasingly lucrative vocation.

As the taste for certain types of tulip became more focused, prices for the most valued bulbs rose dramatically among the upper classes. At first limited to collectors and the wealthy, the large amounts of money to be made soon inspired people of more limited means to sell everything they had to cash in on the trade. At the market’s highest point, single bulbs sold for thousands of florins, the most famous being a Semper Augustus bulb that sold for 6,000 florins (or 40 times the average yearly income).

As more people entered the trade, eventually the sale of real bulbs gave way to windhandel, or wind trade, meaning the future production of bulbs was bought and sold. This increasingly risky venture couldn’t last. The tulip bubble burst in February 1637 when the fear of oversupply and dramatic price increases in early 1637 caused prices to drop precipitously.

Back Petal

While the story of tulip mania often gets told as a cautionary tale and as an analogue to more modern forms of market inflation and decline, such as the dotcom bubble, historian Anne Goldgar thinks this description is overblown. In her book, Tulipmania: Money, Honor and Knowledge in the Dutch Golden Age, Goldgar finds that tulip speculation in reality was not as frenzied as the way it is commonly portrayed. She blames the writer Charles Mackay, whose book Extraordinary Popular Delusions and the Madness of Crowds from 1841 used satirical songs from 1637 as the basis for his depiction of the craze for tulips, which had a tendency to exaggerate the facts of the situation. Far from being irrational, Goldgar argues that there were valid reasons for treating tulips as a valuable commodity, and that the subsequent rise and fall of the market was not as precipitous, and did not personally bankrupt, hordes of unlucky investors.

Dutch Treat

Although this volatility in the tulip market was unsettling at the time, out of that early trade came an enduring business for the Netherlands. Now the tulip is a beloved symbol of the country, and plays an important role in economic and cultural activities. It seems unlikely that anyone at the time the tulip came to the Netherlands could have predicted the enormous effect this flower would have over a nation’s history and economy. It is a vivid reminder that when human nature meets Mother Nature, interesting results are sure to follow.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on April 6, 2007.

Image credit: Alice Achterhof alicegrace [CC0], via Wikimedia Commons


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Author: Morgen Jahnke