Husband fails to have wife’s financial remedies application struck out

This is an unusual one, at least in terms of reported cases. As explained by Mr Justice Cohen in the first paragraph of his judgment, the case AR v JR concerned an application by the husband for the wife’s financial remedies application to be struck out on the basis that it was (a), vexatious, and/or duplicative and/or (b), on the basis there had been a prior compromise.

The relevant facts of the case were as follows:

  1. The parties married in 1967 and are now in their late 70s.
  2. All of their present assets, amounting to a “small fortune”, were accumulated during the marriage, the husband having established a very successful business which, by the end of 2015, had a net equity of just under one billion US dollars.
  3. The marriage grew unhappy, and in 2010 the wife issued judicial separation proceedings, and made a financial remedies application within those proceedings.
  4. A decree of judicial separation was pronounced in August 2010.
  5. On the 14th of October 2011 a consent financial order was made, setting out an agreed financial/property settlement between the parties. The order provided for the husband to pay to the wife a lump sum of some $16 million, in settlement of the wife’s claims within the judicial separation proceedings.
  6. In August 2015 the husband filed a petition for divorce on the grounds of five years’ separation.
  7. In October 2015 the wife issued a financial remedies application within the divorce proceedings.
  8. The husband opposed the application, on the basis that it was an abuse of the court process, the wife having already received a financial settlement when the terms of the 2011 consent order were implemented. He therefore applied for the wife’s application to be struck out.

Mr Justice Cohen dismissed the husband’s application, for the following reasons.

Firstly, it was clear to him that the order of 2011, made in the judicial separation proceedings, was not intended to cover a subsequent divorce, and that neither party thought that it did cover a divorce.

Secondly, the argument put forward on behalf of the husband that the wife should in the judicial separation proceedings have made her full financial claim covering her entitlement in all respects arising from the marriage was unsustainable, because:

  1. There was no obligation to do so. Indeed, as the husband accepted, the anticipation of the parties was that they were to remain married.
  2. Divorce and judicial separation are not the same cause of action. Divorce terminates a marriage; judicial separation does not.
  3. On the facts of the case, the wife did not have the material upon which she could assess the value of her claim for a full share of the assets in 2011. The husband knew that as much as the wife – he had not provided full disclosure of his means. It was true that the wife might have been able to obtain disclosure via court orders, but she was under no obligation to do so. She was entitled to say: “We are still married and I want to remain married to you for many years, perhaps the rest of my life, and for as long as that remains the case, I am content to have my claims dealt with on a needs only basis.”
  4. Both parties were or must have been fully aware on the advice from their own lawyers that the wife’s entitlement claim had not been dealt with.
  5. They must both have been aware that there were matters that still had not been dealt with.
  6. There was no evidence that the wife misled the husband in any way at all.

In the circumstances the husband’s application failed. The wife’s financial remedies application must therefore proceed.

Mr Justice Cohen ended his judgment with this rather sad plea to the parties:

“They are now in their late 70s. It does not appear to me that either is in the best of health. This litigation has been going on for three years. They should not be spending time locked in litigation when there is plainly more than ample funds available in this case for it to be settled. I do urge them to consider mediation to try and bring matters to a closure.”

Let us hope they take heed.

You can read the full judgment here.

The post Husband fails to have wife’s financial remedies application struck out appeared first on Stowe Family Law.


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Author: John Bolch

Becoming a Saint

The Canonization of Saint John XXIII and Saint John Paul II

The curious process of canonization

Douglas Adams, whose writings I have always admired greatly, was a self-proclaimed “radical atheist” who nevertheless liked to say that he was “fascinated by religion”—carefully pointing out that interest was different from belief. Although I would characterize my own views in somewhat different terms, I share his fascination with certain religious beliefs that I do not personally hold. One such notion is that of the saint, particularly as the term is used in Catholicism.

Borrowing an expression from the historical canonization process, allow me to play devil’s advocate for a moment. As an outsider, my impression of saints is that the Church considers them to be extra-holy (dead) people to whom God pays special attention, so that by praying to a saint instead of directly to God, you somehow stand a better chance of having your prayer answered. So they seem to function as heavenly lobbyists, and frankly, I would have thought that an omniscient God would frown on such tactics. Presuming, of course, that a departed soul can hear prayers at all, it is unclear to me why a saint would listen to me in the first place if God were disinclined to heed my prayer. And my mind boggles at why saints’ domains of intercession should be so specialized. (Did you know that Isidore of Seville is the patron saint of the internet? No kidding.)

These things puzzle and exercise me. At the same time, I find the whole subject of sainthood extremely interesting. In particular, I always wondered just how it was that someone came to be recognized as a saint, having picked up only bits and pieces of the process in books and movies. After doing a bit of research, I think I can give a very rough (and, I hope, approximately correct) outline of the path to sainthood. But before I describe the current process, I need to go back quite a few centuries to provide some background.

Saints Alive

As I understand it, the word saint (from a Latin word meaning “holy”) was used in the New Testament simply to denote a righteous person (living or dead). During the early centuries of the Christian Church, the term was applied fairly freely to any number of people, and the practice of praying to particular saints after their death gradually became an accepted part of religious life. Eventually, bishops reserved the authority to decide who should be considered a saint, but such proclamations were considered valid only for that bishop’s local area. By the 10th century, the Church realized that very uneven standards were being applied, and that rather questionable characters were being called saints—even some who may never have existed. So the process was officially codified for the first time, with the pope assuming sole authority to proclaim someone a saint. Although this title was given to some who had been called “saints” before, many didn’t make the cut. (St. Christopher was among these. Although never canonized—formally declared a saint—his feast day continued to be listed on the official Church calendar until 1969.) The rules for canonization were refined and improved over a period of several centuries.

The original process was an enormously complex and lengthy one. Church investigators collected extensive evidence about the person’s life and death—including, especially, any writings the person left. But the crucial test was that of miracles. It was not necessary that a person had performed a miracle while living (though such events certainly helped the cause). Rather, evidence had to be found that after the person’s death, someone had prayed to them—and only to them—and that a miracle had subsequently occurred. The number and nature of required miracles varied according to the circumstances. Many of the earliest saints were martyrs—those who had not only led holy lives but who had demonstrably died for their faith. Martyrs were put on the fast track to sainthood, with less-strenuous requirements—including fewer (or in some cases, no) miracles.

When a certain amount of evidence had been collected, the person was beatified, at which point he or she could be referred to as “the Blessed So-and-So.” But before sainthood could be granted, proof of one or more additional miracles was required. In addition, the life of the saint-to-be was subjected to the utmost scrutiny, with an appointee of the Church (commonly known as the “devil’s advocate”) digging up and pointing out any potential flaw or shortcoming, no matter how small. If this person, who functioned very much like a prosecutor in a trial, was unable to prove his case “against” the beatified, sainthood could be granted.

You will notice, of course, that I speak of all this in the past tense. In 1983, Pope John Paul II simplified the process of canonization tremendously—and eliminated the position of “devil’s advocate.” Now, in general, beatification requires an unblemished biography—with ample indication of the individual’s devotion to the Church—plus one posthumous miracle. Canonization requires a second miracle. Although the process is not even supposed to begin until at least five years after a person’s death, the pope can waive that requirement at his discretion, as he did with Mother Teresa.

It’s a Miracle

This business of proving that a saint was responsible for a miracle is particularly fascinating. The Church adopts a stance of skepticism toward all such claims, and has an entire staff of scientists and doctors who attempt to disprove the miracles—or to find alternative explanations. Most “miracles” are miraculous cures, and in such cases, the Church requires that a board of five doctors unanimously agree that no other explanation exists. Moreover, the cure must be complete and instantaneous; if the illness was cancer, a waiting period of 10 years is required to be sure the disease hasn’t merely gone into remission. Of course, proving that a particular saint was responsible for a miracle (having interceded with God on someone’s behalf) is not such a scientific undertaking. What if, for example, a neighbor prayed to another saint but didn’t tell anyone? What if—heaven forbid—the “miracle” occurred due to perfectly natural causes that simply escaped the scrutiny of the examiners? When all is said and done, no formal process, however detailed and rigorous, can completely eliminate the need for faith.

When all the tests have been passed, the pope proclaims, infallibly and irrevocably, that the person is a saint, and, in fact, always has been. The pope’s declaration does not, according to Catholic dogma, make someone a saint, it only acknowledges this fact officially. The faithful may honor and pray to a saint, but not worship a saint, as worship is to be reserved for God. Likewise, a saint does not actually perform a miracle but rather entreats God to do so. But in real life, these fine distinctions are sometimes lost, turning saints, for all practical purposes, into demigods.

Thanks to his newly streamlined process, Pope John Paul II declared nearly 500 people to be saints—many more than all his predecessors combined. Not to be outdone, Pope Francis has declared almost 900 people—including Pope John Paul II and Mother Teresa—to be saints as of early 2019. This seems rather excessive to me, but then, having any saints at all strikes me as an unnecessary complication in an already complex religion. I suppose the optimistic view is that this is a reflection of an ever-growing number of virtuous people in the world. But I can’t prove that; you’ll have to take it on faith.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on March 19, 2005.

Image credit: Aleteia Image Department [CC BY-SA 2.0], via Flickr


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Author: Joe Kissell

Wikipedia Day

Wikipedia logo

The English language Wikipedia came to life on January 15, 2001, so it’s now old enough to vote! Although I can identify numerous shortcomings of the Wikipedia—and generally try to avoid using it as a reference for articles here if I can find a better alternative—it is nevertheless an incredibly valuable, and occasionally accurate, compendium of knowledge, and I’m glad it exists! Perhaps one day I’ll be considered sufficiently notable to get my own page.

Image credit: Wikipedia [CC BY-SA 3.0]


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Author: Joe Kissell

Giveaway Winners!

I’m really excited to share the winners of last week’s giveaways!

We have two lucky winners!

One winner, to celebrate my ninth bloggaversary is for my cookbook, Penniless Foodie in the Wild; Adaptable Recipes for Foragers and Frugalistas!

The lucky winner is Linda H, who said that her favorite post on Penniless Parenting.com is:

“I love the whole Extreme Frugality section, but my


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Author: Penniless Parenting

7 Small Changes That Promote Big Budget Savings

Sometimes to save money, it takes a lot of time. Sometimes, though, there are simple changes that can save money. Here’s some tips from a reader.

The new year has arrived, and that means that people from all around the world are looking for positive ways to make a change to their daily routine. Since money is an issue that we all deal with on a somewhat regular basis, it makes sense that you


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Author: Penniless Parenting

In re E.T.

(California Court of Appeal) – Reversed an order terminating a mother’s parental rights. Held that this was the rare case where the juvenile court erred in determining that termination was best for the children.


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Not all lawyers are self-serving shock horror!

It’s easy to be cynical. I often am myself. It’s particularly easy to believe in stereotypes, especially if they are likely to attract popular support.

One such stereotype is that all lawyers are self-serving, interested only in their fees, rather than their clients, or the common good. It is often suggested, for example, that all lawyers run cases with the aim of maximising their fees, rather than benefitting their clients.

Well, I’m sure that the legal profession contains some people who have such an attitude. But then, so does every walk of life. You will find examples even the medical profession, which is generally held in the highest public esteem. However, to tar all lawyers with this brush is to fall into the trap of going along with the popular view, without critical thought or research.

What got me thinking about this ‘lawyers only care about their wallets’ cliché? Well, it was a conversation I witnessed on Twitter (which, despite all its faults, can be a useful vehicle for serious discourse) between Baroness Deech and various family lawyers regarding the Baroness’s Divorce (Financial Provision) Bill 2017-19 which, as that title suggests, aims to reform the law regarding financial remedies on divorce.

The Bill has been strongly criticised by many very eminent family lawyers (and also some rather less eminent such as myself), as I explained when I wrote here about it last November.

But it wasn’t the merits or otherwise of the Bill that got me thinking, it was the Baroness’s response to criticism on Twitter. She tweeted:

“The aim [of the Bill] is to have less of the couple’s assets go on lawyers’ costs. So of course it is unpopular in some quarters!”

As one lawyer responded, this was a “cheap shot” at family lawyers, suggesting that they are only opposed to the provisions of the Bill because they believe that they would get less work if it was enacted. It is particularly sad, but perhaps not entirely surprising, that someone in the position of the Baroness should stoop to using the stereotype in this way to gain popular support.

But I have some news for those who think in this way, and it may come as a shock: not all lawyers are self-serving.

Sticking with the example of reform of family law, lawyers have long advocated reforms that were likely to reduce the amount of work that they do, and therefore the amount of fees that they receive. Without much thought I can give two shining examples of this.

Firstly, the introduction of a system of no-fault divorce. This has almost universal support amongst family lawyers. But think about it: contested divorce brings in work for family lawyers, and the animosity stirred up by having to attribute blame for the breakdown of the marriage makes it more likely that the parties will contest finances or arrangements for children, thereby giving more work to lawyers.

Which brings me to the other example. Contrary to popular belief, many family lawyers have long been supporters of ‘alternative dispute resolution’, i.e. resolving family disputes by other methods than going to court, such as mediation (it became compulsory a few years back for anyone issuing a family application to attend a meeting to assess whether the case was suitable for mediation). Obviously, contested court proceedings will be far more lucrative for lawyers than having the disputes resolved in mediation, but that does not stop many family lawyers advocating mediation, and suggesting it to their clients, as I used to do when I was practising.

So when lawyers give their views on law reform they are not necessarily thinking only of protecting their fee income.

And of course lawyers are likely to have something to say about reform of the law, simply because they are (obviously) experts in the field. Family lawyers see the effects of the law on their clients every day, and understand better than most how any proposed reform is likely to play out. Their view is worth listening to, rather than being cheaply dismissed by reference to some popular stereotype.

There are, of course, other ways in which lawyers are anything but self-serving (I hope I do not need to explain that most advice given by lawyers to their clients is for the benefit of the client, not the lawyer’s bank balance). I think, for example, of the enormous amount of pro-bono (free) work that they do, something that very few other professions do. And lawyers also raise huge amounts for charity.

So next time you see a lawyer make a contribution to a debate on law reform, give them a serious listen, rather than dismissing them as being purely self-serving. They may just have something important to say.

The post Not all lawyers are self-serving shock horror! appeared first on Stowe Family Law.


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Author: John Bolch

Oxygen Bars

Patrons at an oxygen bar

I’ll have an O…Make it a double.

If you’ve been to a mall, convention center, fair, or any of numerous other public places in the past decade or two, you’ve undoubtedly encountered an oxygen bar—a counter where people pay for the odd experience of sitting and inhaling scented oxygen for a while. I heard about oxygen bars for the first time in the late 1990s, and my first visit back then, during a trip to Las Vegas, required a taxi ride to the distant suburban outskirts of town. (Nowadays, of course, they’re in every casino.) If you’ve never had the experience, you may be wondering what it’s all about.

Most oxygen bars have feature a counter with bar stools. In front of each seat at the bar is a small apparatus with several plastic cylinders filled with colored liquids, and a small control panel with a series of buttons or dials. The friendly bartender (if you can use that term) will explain how the system works. You pay for oxygen based on a fixed period of time—a typical fee is US$10 for 10 minutes or $20 for 20 minutes. Each customer gets a nasal cannula (a thin plastic tube that goes over the ears and has nozzles that fit loosely into each nostril). This is attached to the apparatus with the cylinders, each of which contains scented water. Oxygen is fed through the liquid and then into the cannula; you choose which scent or combination of scents you’d like using the dials—choices may include scents like eucalyptus, lavender, and lemon.

Oxygen smells just like ordinary air, and if not for the added aromas, you might never know the difference. Because the nasal cannula doesn’t completely block the nostrils, you end up breathing in about half oxygen and half room air. The first thing you notice when you start a session in an oxygen bar is that you and all your companions look rather silly wearing tubes in your noses. There is a certain etiquette, certain social conventions that apply in a bar; people automatically know how to look at each other and carry on a conversation. But those rules don’t seem to apply at an oxygen bar; it feels unnatural to have a casual conversation with someone when you’re both tethered by the nose to a bubbling machine. What exactly are you supposed to do? Just sit there, close your eyes, and meditate? When I went with a few friends for a 20-minute session, we tried reading the health magazines lying on the counter, but that seemed antisocial. For lack of a better strategy, we ordered fruit juice so we could have something in our hands that would allow us to pretend we were in a familiar social setting and thus be able to interact more naturally.

Getting Sober at the Bar

When our session ended, we left, taking our disposable nasal cannulas with us as souvenirs. As we walked outside, we compared notes. The general consensus was that we all felt pretty good—clear-headed, alert, content—pretty much the opposite of the way we would have expected to feel had we just left an ordinary bar. The effect was subtle, to be sure, but pleasant. In fairness, it could probably be said that a similarly tonic effect could have been achieved simply by having 20 minutes of breathing in fresh outdoor air. How much of the effect was real and how much was imagined, I can’t say. I think, though, that the mere process of breathing deeply and deliberately for 20 minutes played a large part in making us feel better.

It’s relatively inexpensive to purchase or lease the equipment to run an oxygen bar, and particularly for proprietors of existing cafés, juice bars, and similar establishments, adding oxygen equipment is a good way to boost profits. Patrons feel they’re getting something valuable, and many health-conscious customers would rather spend their money on oxygen than alcohol.

To Breathe or Not To Breathe

On the other hand, oxygen bars are coming under attack from a growing number of critics. One criticism is that oxygen can be toxic if inhaled at too high a concentration for an extended period of time, and even more so if one is suffering from certain illnesses such as emphysema. Technically, the U.S. Food and Drug Administration considers oxygen a drug that can be dispensed only by prescription, and while most states do not enforce that rule, it could be argued that oxygen bar operators are unqualified to judge patrons’ medical tolerance for oxygen. Others worry about the solutions used to add scents to the oxygen, wondering if they might in some way damage the lungs. But the biggest criticism is simply the claim that oxygen bar treatments provide no real benefit apart from a placebo effect. Healthy people already have the maximum possible concentration of oxygen in their blood, the argument goes, so adding more cannot possibly have any physiological effect.

My own feeling is that while oxygen bars may provide only minor benefits, the criticisms are a bit silly. If someone wants to pay for a few minutes of air with higher-than-normal concentrations of oxygen, whether or not that has any objectively measurable effect, it seems ridiculous to object. One could say that water should never be administered without a prescription because it can lead to drowning if used incorrectly, or that baseball bats should be licensed as deadly weapons. But people don’t say these things, because they defy common sense. Oxygen bars serve up what amounts to a 40 or 50 percent concentration of oxygen for very short periods of time; even the American Lung Association says, “…there is no evidence that oxygen at the low flow levels used in bars can be dangerous to a normal person’s health.” So while oxygen bars should perhaps not make claims of any specific medical benefits, it is certainly hard to dispute that breathing clean air for 20 minutes is better than breathing polluted air for the same period of time. And if a visit to an oxygen bar means time not spent consuming alcohol and breathing smoke, that’s undoubtedly a healthy choice as well.

Note: This is an updated version of an article that originally appeared on Interesting Thing of the Day on May 29, 2003, and again in a slightly revised form on December 12, 2004.

Image credit: Andrew Hitchcock [CC BY 2.0], via Flickr


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Author: Joe Kissell

National Clean Off Your Desk Day

A (mostly) tidy desktop

The desk at which I’m currently standing to type these words does not have enough empty space for a single sheet of letter-size paper, a fact that perturbs me every time I have documents to review or sign. I’m sorry to say that would be true even if I removed every superfluous object from the desktop—it’s just a small desk and I have a lot of tech that needs to be on it. Even so, I plan to take a few minutes today to relocate all those nonessential items, because visual clutter is distracting and I’d rather not be distracted. It’s National Clean Off Your Desk Day, so do yourself a favor and find a better home for all those things that don’t need to be on your desk. (Hey, you can do the same thing with your computer’s desktop—an excellent idea.) Good luck!

Image credit: Pixabay


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Author: Joe Kissell

Protect your inheritance, get a prenup

Your parents or grandparents left you something in their wills because they love you and wanted to secure your financial future. What they probably did not have in mind was for you to split that inheritance up during your divorce. However, this does not necessarily have to be your situation.

When you receive your inheritance and how you treat it afterward can influence whether to view it as separate or marital property. If it is separate property, then it is yours to keep and will not have to go through property division. However, if it is marital property, then you could have to say goodbye to some of your inheritance. Here are a few things to keep in mind.

Does before or after marriage matter?

It depends. If you received an inheritance before marriage, then it is generally considered separate property. This is true of most things you own before tying the knot. This does not mean that you should not take necessary steps to protect your wealth, though.

Even if you receive an inheritance while you are already married, it might still be separate property. Unless your parents or grandparents specified your spouse in their wills, then they may have intended your inheritance to be for your use only, and the law will continue to view it that way as well.

Beware of commingling

Regardless of when you got your inheritance, how you treat it plays a huge role in how you will treat it during divorce. Depending on the circumstances, an inheritance can actually make the jump from separate property over to marital property. This generally happens when you commingle the funds.

Commingling usually occurs when an heir deposits his or her inheritance into a joint account and then uses the money for marital expenses. Things like paying the mortgage, purchasing groceries and settling marital debts are marital expenses. If you handled your inheritance in this way, you might still be able to keep the remaining funds as separate property, but you will have to demonstrate that you never intended to share the funds.

A prenup can help

No one can predict the future, which is why protecting yourself, your assets and your financial future is so important. This includes things like inheritances, which you may not have yet but know that you will receive at some point in the future.

carefully constructed prenuptial agreement can protect you in the event that you and your spouse decide to divorce. By setting clear divisions between separate and marital property, and addressing issues such as property division, you can both lay a foundation for open communication but also implement important protections for your future. Crafting an enforceable prenup can be tricky, though, so first consider speaking with an attorney who is familiar with Texas family law.


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