Do we ask our clients enough questions?

Recently the media has been full of headlines like ‘Woman sues solicitors because they “did not explain that finalising her divorce would terminate her marriage”’. But what is the reality behind the headlines?

The Court of Appeal dealt with the case of Mulcahy v Castles Solicitors & Anor [2013] EWCA Civ 1686 on 18 December 2013. In his judgment Lord Justice Briggs said:

‘On 11th December 2003, Mrs. Susan Mulcahy reached a negotiated compromise of her claim for ancillary relief from her then husband, outside court, on the first day of a planned two-day final hearing, at which she was represented by experienced counsel.... The District Judge made an order embodying the terms of the settlement on the same day...’ (at para 1)

and

‘Much the most striking of Mrs. Mulcahy's many allegations of negligence against her solicitors was that, having regard to her Roman Catholic faith, (her solicitor) had failed to give her the advice which was requisite in view of her firmly held belief in the sanctity of marriage, either in terms of the alternative of judicial separation, or about the impossibility of pursuing divorce proceedings to a clean break settlement, without thereby inevitably bringing about the final termination of her marriage, which she wished to avoid. This lay at the heart of the substantive issues which, in paragraph 25 of his reserved judgment, Judge Wood said that he had to decide. Mrs. Mulcahy's grievance at his rejection of that central part of her case formed a major plank in her grounds of appeal which, after amendment with permission from Master Bancroft-Rimmer in August 2012, runs to some 41 paragraphs. Nonetheless, it formed no part of the matters argued before the court on this appeal, because permission to do so was refused both by the judge, by Lewison LJ on her written application, and by Hughes LJ on its oral renewal.’ (at para 4)

The rest of the judgment make very interesting reading but has little or nothing to do with the slant of the newspaper reports. Some may find the story entertaining but isn’t there something we can learn from this? How far do we, or indeed should we, go into the belief systems of our clients? If a client talks about marital issues with no possibility of reconciliation, how often do we advise them about judicial separation, or even nullity? Do they really want dissolution?

Other options

Judicial separation and nullity are rare beasts in family law land. According to the Ministry of Justice’s (MoJ) Judicial and Court Statistics 2011, there were 227 petitions filed for judicial separation, a decrease of 24 per cent compared with the previous year, and continuing the steady downward trend. This contrasts markedly with 129,298 petitions filed for dissolution of marriage in the same year. Oddly, the MoJ does not trouble to list separately the numbers of petitions filed for nullity, nor decrees granted.

A lesser-spotted judicial separation petition may be filed at court on the same facts as one for divorce (Matrimonial Causes Act 1973, s 17). In contrast to divorce, a judge is not concerned about irretrievable breakdown of the marriage because a judicial separation decree does not dissolve the marriage. Once the single decree is granted, a judicial separation petitioner is no longer obliged to cohabit with the respondent.

As the MoJ says, ‘This procedure might, for instance, be used if religious beliefs forbid or discourage divorce’. But then again so might nullity in certain cases.

What if a petitioner changes their mind about divorce? They may wish to try to stop divorce proceedings part way through at any particular stage. An un-served petition, or rather an application for a matrimonial or civil partnership order, may be withdrawn at any time before it has been served by giving notice in writing to the court where the proceedings were started (Family Procedure Rules 2010 (FPR 2010), 7.9). Where a suit is not duly prosecuted, either party can apply for dismissal of the petition (Gold v Gold (1908) 52 Sol. Jo. 715).

A typical scenario where a divorce does not proceed may be where the spouses reconcile. FPR 2010, Pt 7 sets out the relevant provisions for stay and withdrawal. Thus, a decree nisi may be rescinded, the petition dismissed and the marriage certificate returned to the petitioner.

The story goes that in one nameless court in our jurisdiction, a district judge purported to set aside decree absolute, clearly a legal impossibility. One might just as well have expected the courtroom floor to be covered with confetti.

Tony Roe is a solicitor and  family law arbitrator at Tony Roe Solicitors, Berkshire

Twitter: @tonyroedivorce

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