Articles by Alan Larkin

The law on Deceit put to an unusual use

I have had cases of divorce or cohabitee separation where fathers have sometimes cast doubt on the paternity of the children they have brought up in the relationship with the mother.  In most instances, the doubts expressed are quickly abandoned, since most stem from anger at receiving a letter from the CSA following a very short relationship indeed.  Not many fathers insist upon having their paternity genetically determined.   So I was surprised to see a sobering (and sad) article about a man who sued his ex-wife for letting him believe that the children from her affairs were actually his.

The ex-husband succeeded in winning damages of £25,000 for deceit.  He had maintained the children financially after the separation and divorce believing himself to be the biological father.  It appears from the article that the court awarded the damages at a level equivalent to the feeling of ‘bereavement’ the ex-husband would have experienced when finding out he was not the father.

There is insufficient detail in the article for me to comment further but it would appear that the ex-husband’s legal claim was under the  under the Tort of Deceit (a Tort is a civil ‘wrong’).  The article reminded me of my law student days and the leading authority on Deceit which was then Derry v Peek (1889).  Lord Herschell , in that case, said:

“First, in order to sustain an action in deceit, there must be proof of fraud and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”.

I can only imagine the impact on this ex-husband and also his step-children upon discovering the truth.  How awful it will be if this revelation destroys the relationship he may still enjoy with the children who formerly looked upon him as their father.

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Credit histories should attach to the person rather than the address

It is always unsettling, many years after a divorce has been finalised or your ex-partner has moved out, to receive letters in their name.  This is especially the case when the letters are from creditors or debt recovery agencies chasing outstanding payments.

My virtual postbag received the following from Elsa:

I’ve been divorced for 7 years, but recently have been receiving letters addressed to my ex husband from debt collectors. I have phoned them to tell them, and they have said they will not send any more letters. But what about the ones that they have sent? He hasn’t lived with me for 7 years but still seems to be using my address. Why are the credit companies not checking the validity of the documents they are given? Won’t this compromise my credit score? If there are debts lodged against my address?

OK.  The first thing to note is that so long as the debt is in Elsa’s ex-husband’s name, it remains his debt and his debt alone.  Provided the debts are not jointly owed by Elsa (what is termed joint and several liability – which means the creditor will chase whichever of the joint debtors is most likely to cough up) there should be no problem.

However, Elsa should check to see if any of the loans or credit agreements giving rise to the debts were taken out by her ex-husband after he moved out of the former marital home.  He should not have been claiming to still live at the property when taking on those liabilities.  I think Elsa would benefit from obtaining a credit report from one of the main providers such as Experien UK.  In my experience, lenders and commercial loan companies tend to be more sophisticated in their assessment of someone’s credit worthiness than used to be the case.  They do seem to focus more on the individual rather than the address.  But, Elsa may well find that her credit record is linked to her ex-husband’s especially if they did have joint loans in the past.  if she finds that this is having an adverse impact on her credit history she can submit a financial dissociation request so that her financial history is separated out from her ex-husband’s.

Strictly speaking, Elsa should not open the letters addressed to her ex-husband as they are not her property.  Better to mark them: “Gone away – return to sender”.  The letters should soon dry up.

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Many a mickle makes a muckle (so long as you don’t ignore inflation)

If you have done the hard work of agreeing maintenance upon divorce and have sensibly put in place a mechanism to automatically increase the payment each year by the rate of inflation, then pat yourself on the back.  You’ve done all you can to avoid having a huge row with your ex each year about the amount of any annual maintenance increase and the prospect of an expensive return to the family court to argue the toss in front of a judge.

But, as I have discovered from my virtual postbag over the last two years, the scope for argument and misunderstanding still exists.  I have just heard from Lianne:

I wonder if you would please help solve an issue between my ex-husband and myself.

I am due to receive an annual RPI increase from 1.1.13. (date stated in my Court Order).

I receive my monthly maintenance payments on the 16th of each month.
Can you please clarify which months RPI figure is the one that should be used? My ex is saying that it should be the one for Sept. 2012 as the Court date is the first of the month.

My view is that it should be the figure for Oct. 2012 regardless of whether the increase is for 1st or the 16th of the month, as it is the actual month that is the deciding factor not the date of the month.

Thank you for your time and attention.

Well, I’m with Lianne on this one.  The normal mechanism is to use the RPI figure for the month three months before the month in which the maintenance is to be increased.  So that would be October.   For any visitors of the blog for which that sentence reads like gobbledegook, you will have to read the other posts and comments on this subject using the RPI tag in the Cloud Tag on the left hand side of the page.  The important thing to note is that the increase in maintenance is based on the increase in inflation in the preceding (or as near as dammit) 12 months.  There is always a lag before the Office for National Statistics can calculate each month’s RPI figure and then release it to the public.   So it is common to take a figure three months prior to when the increase is due because the RPI figure should be in the public domain by then.

If anyone wants to work out how to calculate an RPI increase then look no further.

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Are company assets now beyond the reach of the Family Court?

How does the family court deal with a divorce financial settlement when one of the spouses, usually the husband, is suspected to be in control of valuable assets that are held by his companies?  If a family court decides, for instance, that it wants to make an award of £500,000 to a divorcing wife, but £400,000 of that sum is locked up in a company, how can the court get its wish?

Well, until a recent Court of Appeal decision in the case of Petrodel Resources Ltd & Ors v Prest & Ors [2012] EWCA Civ 1395, the family court could order the transfer of assets owned by such companies or even company shares to the wife.  In this particular case, the husband owned the companies 100% and when the High Court first dealt with the case, the Judge ordered some of the company properties and shares to be transferred to the wife.  The husband appealed to the Court of Appeal and argued that the orders should not have been made since the court had failed to distinguish between the husband as an individual and the companies of which he was the sole shareholder.  The husband reminded the Court of the long established legal principle that a company has a ‘legal personality’ which is independent of its shareholders.  The shareholders of a company have no interest in or entitlement to the company’s assets.  Therefore, the High Court had made a fundamental mistake when it ordered that the husband was entitled to the properties and shares in his companies and could therefore simply be ordered to transfer them to his wife.

The Court of Appeal agreed with the husband.  The decision was not unanimous: it was a 2:1 majority.  The dissenting Judge was worried that husbands with assets tied up or sheltered by company status would be given “an open road and a fast car” to defeat the reasonable claims of a wife on divorce.

It is fair to say that most family lawyers I have spoken to are astonished (and concerned) at the Court of Appeal’s decision.  It is common in some marriages to stick matrimonial assets into company ownership for tax and financial planning reasons.  If this decision by the Court of Appeal stands, I can imagine that some wives will be nervously reviewing the matrimonial financial arrangements to find out if that fast company car disappearing down the highway has its boot full of the family silver.

If this Court of Appeal decision stands it is difficult to envisage how a family court can achieve fairness in circumstances where a husband (perhaps by calculation) is at the steering wheel with the pedal to the metal.  Thankfully, both for justice and my motoring metaphor, the case has now been appealed to the Supreme Court where I sincerely hope Baroness Hale has constructed a roadblock and is armed with high explosives.  I just hope Her Ladyship remembers she is only supposed to blow the bloody doors off.


The DWP App

The Department for Work and Pensions (DWP) launched an app at the end of November 2012.  The app is intended to provide assistance to people who are struggling with the issues that arise on relationship breakdown: divorce, child support and so on.   I think the app is the delivery of an initiative announced in July of this year when the press reports talked of a ‘Divorce App’ and the figure of £14M budget spend was bandied around.   I questioned then why £14M was needed for an app.  I now understand the spend was closer to £300,000.  Quite a come-down.

I had a bit of a go in that previous post, unhappy as I was with the brutal staff cuts to the court system and the planned withdrawal of most family legal aid in April of 2013.  My bad humour is not dispelled by the ‘Sorting out Separation’ app now hosted by the DWP.  I’m all for helpful guidance but placing impossible obstacles in the way of access to justice turns me into Mr Angry.  For one beautiful moment, back when the app was launched in November, I saw a link to MailOnline about the app that seemed to share my anger.  At last, I thought, one of the press big beasts has woken up to the threat posed by the withdrawal of legal aid and the insulting attempt to fill the impending void with an app.  Fortunately, natural order was restored once I read the article and realised that the Daily Mail was angry, as usual, for all the wrong reasons.  It was just the usual piece about how getting a divorce or separating was being made even easier.  Strangely enough, most of the readers of this blog seem to find the exact opposite: sorting it out is expensive, complicated and deeply stressful.



However, I have allowed myself to be distracted.  Since my blog is intended to be helpful to the very people who will be most affected by public provision cuts, I have decided to give the DWP’s shiny new app a fair crack of the whip.


Good luck and let me (and others) know if the Sorting out Separation app is worth the money we taxpayers have just spent on it.

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I have visited the topic of child support on many occasions. My virtual postbag this week has several examples of one common scenario: where the husband and wife start off by getting it very right, with an appropriate order for child maintenance upon divorce, but then, somehow, it goes very wrong.  The sad thing is, it goes wrong, very often, because of a basic misunderstanding. Most of this should be avoidable.

To the postbag…

Suzanne writes:


I have a court order (payable by standing order monthly) which has been running for 8 years. After the first year my ex husband refused to pay the yearly increase, and has been paying the same amount ever since. I have now requested that he increases the maintenance but he still refuses to do this.  Can you please advise what the yearly increase should be as I have no alternative but to take this back to court.
Also will he have to pay the arrears?

I have re-married two years ago, would this affect the payments?

Child maintenance

Suzanne later confirmed to me that this is a case of child maintenance.  In which case, Suzanne’s re-marriage is of no consequence whatsoever.  The child maintenance must be paid in accordance with the terms of the court’s order.  It is a great pity that the ex-husband has failed to observe the increases each year ordered by the court.  In the first place, the order for child maintenance would only have been in a court order if the husband agreed to the family court having jurisdiction for dealing with child maintenance (instead of the CSA).  Secondly, he would have agreed to the yearly increases (normally by reference to inflation measures like the Retail Prices Index) as he must have recognised that the cost of living – especially in relation to kids – only goes up and never down.  So his refusal to honour the increases he agreed is disappointing.  As I have commented before, the costs of bringing up children is usually underestimated.

Suzanne has asked me what the yearly increase should be.  Unfortunately, I cannot calculate that without knowing the amount of the original award, the date it was awarded and the mechanism used in the court order to determine the yearly increase.  But, I have laid out in previous posts how to calculate the yearly increase and also how to calculate the amount of arrears that have arisen when the yearly increase is ignored.  Click on “RPI” in the Tag Cloud on the left hand side of the web page: this will bring up all my previous posts on this issue. 

One issue here, if this is a child maintenance order, is that in the case of a disagreement over the amount of child maintenance, the family court responsibility comes to an end and the parents will have to look to the CSA.  The usual scenario is that one parent wants to receive more or one parent wants to pay less.  This would require a variation of the original order for child maintenance and this variation must also be by agreement.  But, in Suzanne’s case, she is not talking about changing the amount of the original order but rather simply requiring that her ex pays the yearly increases he promised. Suzanne, if she gets legal advice, may be told to apply back to the court to enforce the payment of the arrears.  But you have to get the court’s permission to recover more than the last 12 months of arrears.  The application is made on Form D11 (Family Procedure Rules, 2010, Part 18).  Suzanne would need to set out her calculation of how those arrears had arisen.  This is not that easy but look at my previous posts in the Tag Cloud for “RPI” and “Child Maintenance”.

The alternative for Suzanne if she wanted, would be to refer her ex-husband to the CSA so they could carry out a fresh assessment of the amount of child maintenance to be paid.  The CSA would not be able to recover the arrears for Suzanne under the court order but I suspect the ex-husband would end up paying more towards his child or children under a CSA assessment than under the court order which is now 8 years old and has not been increased each year.  The CSA may refuse to act though if Suzanne’s child or children are too close to the age of 17 (when CSA responsibility comes to an end).  I don’t have enough detail here to make any further comment.

So, if Suzanne took legal advice, it may well be that she should apply to the court to enforce the arrears.  Remember, that her ex could refer himself to the CSA and if they took responsibility for the situation then the family court order dealing with child maintenance comes to an end, and with it, any prospect of recovering any arrears.  So Suzanne may want to get her application into the court for enforcement first, and recover as much of the arrears as possible.  Since her ex will then have to disclose his present income in those proceedings, she can ask her legal advisers to calculate how much he would pay if the CSA were involved. She can then take advice upon whether to refer the child maintenance to the CSA from that point onwards if the award would be higher than she presently receives under the family court order.

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Separate but not apart in absence of divorce

Any divorce lawyer will tell you that it is better to obtain advice about an appropriate financial settlement upon divorce than simply let things drift.  People’s lives move on, sometimes for the better, sometimes for the worse, but any delay of years can usually make it harder to sort out (never mind agree) an appropriate settlement.  Even when ex-husbands and wives are trying to negotiate financial claims many years after the separation they can get a nasty surprise to learn that the family court will value assets at today’s prices, not six or seven years ago if that happened to be the date of divorce or separation.

My postbag has a plea from Tina:

I left my husband six years ago, and have been living with a new partner.  I never divorced. I am on the bread line – used all my life savings to help support my new partner, even bought him 3 cars.  I’ve no income at all.  My new partner’s on very low income.  We live in rented house, and new partner is talking about leaving me now. I’ve no security. My husband still has his own business, and promised inheritance from his uncle. Could i be eligible for sposal maintenance? My husband was also left his mum’s house, which i didn’t get a penny from. Plus I’ve no pension, and I’m 52.  I had a heart op two years ago. Thank you.

There is so much about Tina’s situation that I do not know about.  Readers of my blog will know that the devil is always in the detail when it comes to the family’s court’s jurisdiction which takes all circumstances into account.  As usual, because I cannot and do not offer advice on my blog, I can only make some observations about Tina’s desperate situation:

  • I do not know the length of the marriage .  The longer the marriage, the more likely the presumption of the court to consider it reasonable for Tina’s husband to make financial provision for her, despite the significant period of separation;
  • I do not know whether Tina raised children with her husband during the marriage: is Tina’s lack of pension provision because she was busy bringing up the children?  A factor that would weigh heavily with the court.
  • When did Tina’s husband receive his mother’s house?  I presume this was an inheritance?  The inheritance is likely to be significant, especially if Tina and her husband already owned their own property and the mother’s house is a surplus asset.
  • Tina’s health is not good at the moment and she does not appear to have any earned income.  Her health may severely limit her ability to get paid work.  This would concern the family court.
  • There is mention of the husband’s business.  Was this a business he had during the marriage?  Was it a company and did Tina have any formal interest in the business, such as a shareholding?  Did Tina make an indirect contribution to the value of the business by dint of the marriage?  This business could be hugely significant in any divorce but I don’t have any information.
  • Tina mentions the ‘promised inheritance’ from the husband’s uncle.  This is only a promise and the uncle could change his Will at any time.
  • Unless there are very valuable assets in the marriage, it is likely that a court would deal with a financial settlement on the basis of ‘needs’.  This means that a court may compel Tina’s husband to use any assets he may have built up after Tina left him to satisfy Tina’s financial claims in divorce.  The husband’s inheritance from his mother may also have to be partially used.
  • Tina and her husband are not divorced.  There has not been a financial order from the court.  Tina has not re-married.  This means that the financial claims: property adjustment, lump sum orders, spousal maintenance, and pension sharing orders, are all still open to Tina.
  • Although Tina has been co-habiting with her new partner for six years, this does not have the same weight as a marriage in the eyes of the family court.  In any event, Tina seems to have spent her life savings supporting this man so he can hardly be viewed as a valuable resource to Tina whose existence should prevent her from reaching a divorce settlement with her husband.
  • Tina may well want to go and obtain advice immediately from a family law solicitor who offers legal aid before that scheme dries up  in April 2013.  The solicitor can advise upon initiating a divorce and also a financial settlement and may also want to explore how Tina’s housing situation can be secured should her present partner leave her.  Is the rent paid to a private landlord or to a local authority or housing association?  Steps may be taken under the Family Law Act 1996 to prevent Tina’s partner from relinquishing the tenancy and therefore making Tina homeless.
  • I doubt Tina can take any further steps against her present partner for the monies she has spent on him.  As co-habitees, neither has any financial responsibilities to the other.
  • Tina may also wish to consider booking an appointment with her local CAB to have her situation assessed by a welfare rights benefits adviser, particularly in view of her health.
I hope my observations are helpful and I wish Tina well.

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Journey cost calculator for Divorce Finance Toolkit

I like calculators. They are really useful when you’ve run out of fingers to count on.

This is a journey cost calculator. In many divorce and separation cases the earned income has to stretch a long way. Here are a few scenarios where this calculator may prove useful:

    1. If you are divorcing and making a financial claim you will probably have to complete a financial disclosure questionnaire called a Form E. It asks for all sorts of information on people’s finances and one of the sections in particular is called income needs. Invariably, at first attempt, many people underestimate their true levels of expenditure. This calculator can help to focus on the true cost of the mileage that may be clocked up in getting to work.
    2. Or, you are negotiating with your ex over the amount of spousal maintenance or child maintenance that should be paid. One of you may require a car to get to work. That wage may be providing for maintenance payments. The cost of getting to and from work can be significant with the cost of fuel at the moment. This calculator may help to show just how much is being spent. This unavoidable cost could be factored into the discussions.
    3. Or a level of maintenance has been agreed and in place for a number of years but the paying or receiving party has a change of circumstances involving more motor travel, perhaps in relation to a work relocation. So the calculator could assist in showing why the change of circumstances means an adjustment in maintenance is required.
    4. Another scenario is where contact to children is being discussed. One of the parents may have to do a fair bit of mileage over time picking up or dropping off the kids for contact. It is a cost that could demonstrate why the parent paying maintenance will struggle unless this essential expenditure is taken into account. Or, for instance, if it is a mother working part-time and doing most of the motoring around to allow contact, why the maintenance she is receiving may need to have an element in it to cover this cost of travelling.

Ideally, I wish I could find a calculator that would allow road, tax, servicing and insurance to be incorporated but no luck so far.

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All the fun of the (un)Fair

I have written before about the difficulties encountered by self-reppers when trying to deal with the court system.  The courts are braced for a significant rise in the number of litigants in person when legal aid is removed from the grasp of most people requiring family law help in April 2013.

The spotlight will be on the courts (and judges in particular) to see how the reasonable demands of access to justice from the growing band of self-reppers will be met from the dwindling resources at the court system’s disposal.  There have already been severe cuts to the number of court staff.  I could wheel out some stats at this point but the reality on the ground says it all.  Most courts have public counters.  This is where you go if you need to grab some court forms or hand in court papers.  They used to be open to the general public from 10 in the morning until 4 in the afternoon.  There might sometimes be a bit of queue but there appeared to be enough staff around, hiding behind the screens, to come and help when things got busy.  Not any more.  Most courts now have restricted opening hours for their public counters.  My local court operates on half days.  If you want to issue a document and it is not screamingly urgent, then hard luck.

But what about the experience in court itself?  In a recent case in the Court of Appeal,  Lord Justice Kay, vice-president of the Court of Appeal, said that a particular self-repper’s lack of legal understanding did not entitle him to ‘extra indulgence’.  The Judge went on to say: ‘It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.’

Having had a quick glance through the judgment it does appear that this particular self-repper had taken a few liberties.  But such cases are going to crop up in increasing numbers as we head into the economically austere, non-legal aid future.  This case prompted me to think about my own experiences with self-reppers.  My reflection was sharpened by the editorial comment in my professions’s trade mag: The Law Society Gazette which said about the case:

The finding will comfort solicitors facing a soaring number of self-represented opponents.

Unfortunately, I find little comfort in the finding.  I have represented clients whose ex-partners were self-repping.  Some of those people could have afforded legal representation.  Some could not.  Certain individuals were perfectly pleasant and decent and I tried to help them as much as I could without overstepping my own professional boundaries.  Other individuals had what I can only describe as ‘issues’.

Those issues used to be in relation to my client, usually in a divorce, but as the case went on, those issues would magically transfer themselves to me. Before long, I was the villain: lying to the judge; destroying a perfectly happy family; morally bankrupt; financially grasping; without a single shred of human decency or understanding.  In case I was too thick to get the message I could often rely upon the self-repper’s extended family to helpfully shout out my failings at the next court hearing.

If you have both parties legally represented then, in most cases, you can concentrate on the issues that the judge will consider relevant.  But more than that, a lawyer can help, constructively and patiently, to manage a client’s expectations of what can be acheived.  So, those self-reppers in the past who hated my guts could have had their own lawyer explain that I really wasn’t out to destroy them.  All that time and energy distrusting every word I said or letter I wrote just hopelessly, and sadly, prolonged the whole shouting match.  And don’t forget that my own client in this scenario, paying for my legal advice, ends up paying a whole lot more because their self-repping ex needs, at best, to have everything explained to them, and at worst, just wants to be as bloody-minded as possible to keep those bills racking up.

But despite some pretty horrible experiences with one or two self-reppers who had these proverbial ‘issues’ with the cut of my jib, I find myself largely sympathetic to the plight of litigants in person.  How do you make sense of a legal code or procedure that some lawyers struggle to understand?  I once jokingly quoted a small section of the costs rules in a previous blog from the Practice Direction accompanying Part 28 of the Family Proceedings Rules (FPR 2010). This states:

Rule 28.2 provides that subject to rule 28.3 of the FPR and to paragraph (2) of rule 28.2, Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in family proceedings with the modifications listed in rule 28.2(1)(a) to (d).

I mean, for Christ’s sake, how are self-reppers meant to get their non-legal melons around that one?

And, in the interests of fairness, whilst most solicitors have a few horror stories about self-reppers, the legal profession does not always cover itself in glory.  I must not say anything to bring the legal profession into disrepute and I wouldn’t dream of doing so.  I will only observe that there are some members of the legal profession who are tossers misunderstood, with egotistical extrovert personalities who are  arrogant forthright, long-winded articulate, and utterly pompous possessed of remarkable gravitas.

Since this blog is intentionally aimed at the public, rather than my friends and peers in the legal profession, I know that a fair few self-reppers visit my site, so I would be interested to hear their views in the comments section below.


There is a very interesting case in the High Court at the moment.  It involves the difficult relationship between the family court jurisdiction and the civil jurisdiction, specifically how the court deals with insolvency or bankrupty claims following a divorce.  A former company director, is asking the court to agree that his bankruptcy should release him from any obligation to pay his ex-wife the unpaid balance of a lump sum she was awarded in their divorce.

The ex-husband, Alexander McRoberts, agreed, amongst other provisions, to pay his ex-wife a lump sum of over £500,000.  The sum was payable in instalments. But, as can often happen with elements of a court order that have an on-going nature, a subsequent event some three years later has upset the applecart. In this case the event is in the form of Mr McRoberts’ bankruptcy, and this has led him to ask the court to write off the debt.  The problem, from Mrs McRoberts’ point of view, is that she is still owed £394,000 and she would like the orginal order, granted in the family court, to be honoured, thank you very much.

Generally speaking, the lump sum order to Mrs McRoberts survives her husband’s bankrupty – indeed, the news reports indicate she was a creditor in his bankrupt estate.  The judge in this case has reserved judgment and there will be many family lawyers awaiting this particular decision. The concern for ex-wives, awarded lump sums in this fashion, is that the award by a family court can then be dumped (potentially) by the husband later becoming bankrupt.  This is a case that could open the floodgates to many other applications by insolvent ex-husbands seeking to be released in the same fashion.  Should the court grant Mr McRoberts his wish, I anticipate that other ex-wives facing similar petitions for bankruptcy by their divorced husbands in the future will be resisting at all costs if they smell a financial rat.

Watch this space.

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