First for Divorce – Then and Now

With Breeze and Wyles Solicitors Ltd celebrating its Centenary year we start to reminisce over the bygone years and wonder just how much things have changed and what our predecessors would make of the world today. 

We are in the service business of law, an area which even during the period that I have been practising has seen vast changes. Within family law this has included an increasing emphasis upon alternatives to court, changes to how child maintenance are calculated and the organisations able to deal with the same, the introduction of civil partnerships, legalisation of gay marriages and the introduction of the Single Family Court. 
However, when it comes to divorce, the rules and the procedure have largely remained untouched since before I was born. Current divorces are dealt with under the Matrimonial Causes Act 1973. This provides that a divorce petition can be presented to the court on the basis that the marriage has irretrievably broken down. In order to persuade the court that the marriage has broken down irretrievably the applicant must establish one of five facts; those are adultery, unreasonable behaviour, two years separation with the spouses consent, desertion and 5 years separation. 
It is largely a paper exercise as a hearing is only required when proceedings are defended, which is rare, or when it is the Respondent and not the Applicant making the application for the final order (Decree Absolute). 
It is when you consider things over a much longer period that you realise just how much things have changed. In the 1800’s an unhappily married couple had just three options each controlled by the church. 
1) Nulity on the basis of impotence, insanity or incest. This rendered any children born illegitimate but the parties were allowed to remarry. 
2) Adultery, Sodomy or Physical violence allowed the parties to separate but they could not remarry. 
3) The parties separate and then sue for adultery. If successful the parties could then petition parliament for a divorce. 
This was an expensive and very long process and quite apart from the difficulty of the procedure and grounds for divorce the wife had virtually no rights. Upon marriage any assets she owned automatically passed to the husband, the children belonged to the husband and would stay with him, the wife could be excluded from the family home without an order and if she was beaten by him there was very little she could do about it. 
In 1827, Caroline Norton, the grand- daughter of playwright Richard Sheridan, married the MP for Guilford, George Norton. It was a very unhappy marriage as the couple disagreed about many things and Caroline was regularly brutally beaten by her husband. She left him twice but returned both times for the sake of the children. George alleged that she was having an affair with the Home Secretary Lord Melbourne and sued the Home Secretary for adultery but failed as there was no evidence and so he responded by forcing Caroline out of the home and refusing to allow her to see her children. 
Caroline naturally felt aggrieved as to what had happened and the lack of help available to her and embarked on a campaign which would result in the first steps toward a revolution not only in relation to divorce but also women’s rights in relation to the children and finances. 
In 1839, she persuaded parliament with the assistance of a sympathetic MP to pass a law allowing mothers who had not committed adultery to seek the right of custody of children under the age of 7. Not content with this she then sought further changes and in 1858 The Matrimonial Causes Act 1957 became law. 
This act took the responsibility for divorce from the church and gave it to a newly formed civil court. Men could apply for divorce on the basis of the wife’s proven adultery. Women could apply for divorce on the same ground so long as they could also prove physical cruelty, incest, rape, sodomy, bestiality, bigamy or 2 years desertion. Women also obtained some rights in relation to inheritances and investments. 
Further changes came by way of the Infant Custody Acts and the Married Women’s Property Acts gave women back their rights in relation to finances so that they were in the same position as unmarried women. After this point, the laws remained largely unchanged until after Word War 1 and a world in which attitudes towards life, promiscuity and marriage had changed significantly. 
In 1923 the Matrimonial Causes Act was made law which put the parties on an equal footing allowing either husband or wife to issue divorce proceedings on the basis of the other’s proven adultery and made divorce more accessible and in 1937 the additional grounds of cruelty, desertion, incurable insanity were made available. These grounds had to be proven at a hearing where the court would hear evidence. 
It was not until the 1960’s that the laws were changed further with the Matrimonial Property Act giving recognition to the contribution of women in looking after the home and the Divorce Reform Act 1969 later consolidated in the Matrimonial Causes Act 1973 setting out the current grounds and procedure for divorce. 
Caroline Norton passed away in 1877 and I suspect that she could have never have guessed or even dreamed about the far reaching changes that the future held. The changes have certainly been significant and divorce more easily accessible. However, I suspect that some may well argue that the changes have diminished the meaning of marriage or gone too far with fathers in particular sometimes facing a significant struggle to see their children despite being told that they have ‘equal’ rights. We shall have to see what the next 100 years has in store. 
Karen Johnson - (Associate Solicitor and Family Mediator) – A Graduate of the University of East Anglia who then completed her Legal Practice Course at the College of Law in London and then Qualified as a Solicitor in 2002 working in a local High Street Firm before Joining Breeze & Wyles Solicitors in 2009 and becoming an Associate with the firm in 2011. 
Karen is a highly skilled and experienced Family Solicitor with in excess of 10 years experience of working in Family Law. She is a Resolution Accredited Specialist in the fields of Domestic Violence and Financial Matters. Karen is additionally a Family Mediator trained by and a member of the Family Mediators Association (The FMA) an association with over 20 years experience of Family Mediation.


Consumers get more clout with new laws

Consumers who are subjected to lies or pressure selling by unscrupulous traders have new rights from October.
When the changes come into effect, the Consumer Protection (Amendment) Regulations will give consumers the right to unwind contracts, claim a discount or raise a claim for damages against businesses who have subjected them to misleading or aggressive tactics.

Although crooked business practices were the target of the Consumer Protection Act in 2009, the original regulations did not give consumers any private right of redress against the trader, so victims had to rely on complex civil law, or in some cases had no options at all. 

Now there is a route to remedy, but it’s not enough for the consumer to feel intimidated or misled, they must have made a ‘transactional decision’ such as buying goods or services from a business or selling goods to the trader.  There is also an 'average consumer' test, which asks whether someone who is reasonably well informed and observant would have entered in to the contract or made the payment.  Therefore, it will not be enough for a consumer to say that they personally felt intimidated or misled, although there will be a separate test for vulnerable consumers.   
And to make a claim, a consumer will have to show they suffered a loss or distress as a result of the misleading or aggressive commercial practice and the right to damages will be limited "in respect of loss that was reasonably foreseeable at the time of the prohibited practice".  Traders will have a number of defences, such as if they can show that the misleading or aggressive practice happened as a result of a mistake or other cause beyond their control, and that they took all reasonable precautions to avoid the misleading or aggressive practice from occurring.
Financial services contracts between businesses and consumers, such as for pensions, mortgages, insurance and banking, will not be covered by the new Regulations.
Brendan O’Brien of Breeze & Wyles Solicitors Limitedsaid:  These new regulations represent an important change in the law, and should prompt businesses to check their processes and make sure that staff know they must keep clear of such practices.
“We are seeing a wholesale overhaul of consumer law at the moment.  Coming soon will be the Consumer Rights Bill, which is now in the final stages of parliamentary review, and this is intended to be a simplified, modern framework of consumer rights.  It should become easier for both business and consumers to know where they stand.”
ENDS
Web site content note: 
This is not legal advice; it is intended to provide information of general interest about current legal issues.
Useful Links

Misleading and aggressive commercial practices: new private rights for consumers, guidance on the Consumer Protection (Amendment) Regulations 2014

 


House sellers are facing testing questions

Property prices keep on hitting the headlines, but anyone getting their home on the market with the hope of celebrating Christmas in a new place, should be getting the paperwork in order before a buyer knocks on the door. 

It’s tempting to throw away old papers when spring cleaning or thinking of moving home, but anything relating to renovation or upgrading on a property should be kept safe and sound, to avoid problems and delays when you come to sell your house.
And if the tradesperson didn’t give you the right paperwork, it makes sense to track down what you can before you get too far along the sale process. 
Any work involving electricity or gas should be carried out by someone who is suitably qualified and they should certify that the work has been properly carried out in accordance with applicable regulations.  New windows should have a FENSA certificate.
Internal modifications may need building regulations consent and, when the work is complete, you will need a certificate confirming that those regulations have been satisfied, together with any planning permission, if that was also required.
It is down to the householder to make sure these documents are provided, although it can mean having to be firm if a tradesperson treats such paperwork as of secondary importance, especially once the work is complete and they have been paid.
Old deeds and conveyancing documents may also be important. Although most properties are now registered at the Land Registry and the owner’s title consists of an electronic entry held by the Land Registry, the old deeds may contain information that does not appear in the Land Registry records. For example, the Land Registry title may state that a property is subject to certain rights or undertakings - known as covenants - but the record may not include the details about what exactly those rights or covenants are, and the only way of finding out is by referring to the old deeds.
Property Law expert  and Head of Residential Conveyancing John Appleton commented:  “It’s well known that moving home is one of the most stressful events in life, even if it all goes smoothly.  If you haven’t got the right records and certificates, it’s bound to cause delay and in the worst case scenario it could lead to a buyer backing out.  When you’re planning any work in the house beyond simply decorating, it really makes sense to check out your responsibilities as a homeowner - you need to know what paperwork your tradesperson is supposed to provide and then make sure that they do what is required.”
ENDS

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Clear Your Bad Debt Ledger Compliantly! Can you afford not to?

You won’t have been able to avoid the recent spate of press surrounding bad debt practices from the Student Loans Company, whereby letters were sent purporting to be from an outside collection company; Smith Lawson and Company Recovery Service, on behalf of “their client” to 300,000 students. In fact the letters confirmed in small print at the base, that Smith Lawson and Company Recovery Service was not a separate company, but merely a subsidiary of the Student Loans Company.
Discussions took place between the Student Loans Company and the Office of Fair Trading in March of this year and revised correspondence with Smith Lawson is yet to be agreed. This scandal came shortly after the exposure that Wonga had been operating a similar collection process which resulted in them agreeing to pay over £2.6 million pound in compensation.
Not only does a bad collection process have the ability to hit you hard in the pocket, it can also be extremely damaging to a Company’s reputation.
It is more important than ever to ensure that your debt recovery is managed by regulated professionals. With our fees for sending a letter before action being £10.00 plus VAT, you can chase your debts cost effectively using our award winning debt recovery service. We can calculate the interest and compensation you are entitled to, should you wish us to do so. Often the compensation and / or interest you are entitled to, exceeds our cost for sending the letter before action to your debtor.
We have this year won the award of UK’s Debt Recovery Firm of the Year for the second year running. This award has been awarded due to:
ü  Our low and fixed cost pricing structure:
ü  Our focus on delivering great customer service:
ü  The speed of our service (we will send a letter before action within 24 hours of receiving your instructions):
ü  Our results!
We pride ourselves on providing a second-to-none service and believe that our recent awards reflect this. Try us for yourselves to see why our clients are so impressed with our service.

For further information on our debt recovery service, please visit www.breezeandwyles.co.uk/debtrecovery/download/Debt Recovery Proposal Aug.pdf or contact our Head of Debt Recovery: Rita Wright on 01992 558411 or rita.wright@breezeandwyles.co.uk.