I am quite nervous at the moment because on Monday evening I will have to run through my proposed routine for the first time. So far I have just about managed to run through it once or twice on my own at home. I don’t know what any of my neighbours would think if they could see me through the window standing in the middle of my living room talking into an up turned can of deodorant.

The closest I have come to running through my material in public so far was at our last session where we all sat round a table and read out a section of the set that we had been working on. This was OK, although there were times when I thought to myself, “they should have laughed at that bit”. However, running through the set in full should hopefully reveal to me the weak areas that need to be cut out.

I have been working on material over the last couple of weeks and since I had my original thoughts as to what I would talk about my whole set list has completely changed. So far the notebook I was given to jot notes down in when we first standard our sessions is nearly full. Many pages are just full of my crazed scrawl as I rush to jot down any idea that pops into my head. The result of this is that at the moment I have about enough material for at least a 45-minute set. Not a great 45-minute set, I have to say. It’s now a case of editing down 45 minutes of waffle down to 8 minutes of comedy gold.

It is due to this editing process that my set list has changed. Now, I did feel quite good about this because I felt that I had developed my original ideas and come up with some good material. However, what was slightly concerning was when I mentioned to a friend of mine that I had cut out a whole section of the act, only for my friend to say that that was his favourite bit. Hardly the words of encouragement that I want to hear.

Furthermore, after spending some significant time last night, (and almost missing Big Brother as a result), editing this material I found out that I had only managed to shave off about 15 minutes worth of material. Somehow I still have to get rid of another 22 minutes worth at least, even though I was certain last night that I had cut out about as much as I could.

So this weekend is going to be spent mostly editing. I have also managed to persuade a couple of friends to listen to me run through the routine on Saturday, I hope they laugh, if not I may not make it to my session on Monday…

Daniel Stear

Wayne Rooney and Coleen McLoughlin recently “tied the knot” in a lavish ceremony in Italy.  However, the couple decided against entering into a Pre Nuptial Agreement, deeming this “unromantic”.

In contrast, many couples are now increasingly entering into Pre Nuptial Agreements. These are defined as a written contract which sets out how assets should be divided should the marriage fail and divorce proceedings be instigated.

It should be noted that Pre Nuptial Agreements are not currently enforceable in English Law.  However, they are common in countries such as the USA where a “Pre Nup” is put in place for over 80% of couples.

The English Courts can take the existence of a “Pre Nup” into consideration if the marriage fails, but it is just one of the factors that the Court takes into account.  For a “Pre Nup” to be upheld both parties have to provide full and frank disclosure as to their finances; it has to be fair to both parties; both parties need to take separate independent legal advice; and finally, it has to be signed at least 21 days before the marriage.

The case of Crossley v Crossley 2007 was regarded as a significant step forward towards the enforcement of Pre Nuptial Agreements in English Law.  In that case, the couple had each brought substantial wealth into the marriage, with the Husband worth approximately £45 million and the Wife worth approximately £18 million.  The Husband had been married once before and the Wife three times previously.  They had signed a Pre Nuptial Agreement before marrying in January 2006 (having met in June 2005). The Pre Nuptial Agreement set out that neither party would be entitled to any financial provision from each other in the event of a divorce.

The Wife petitioned for divorce and sought financial provision from the Husband, contrary to the Pre Nuptial Agreement.  The Court of Appeal upheld the existence of the Pre Nuptial Agreement describing it “as a quite exceptional case on its facts”. However, had there been children of the marriage and had it been of a longer duration then the decision may have been very different.  

At present, Parliament has not provided legislation to make Pre Nuptial Agreements automatically enforceable under English Law. Provision could be made in the future, with the Law Commission announcing a new three year programme on 11^th June 2008 which would include Marital Property Agreements which would examine the status and enforceability of agreements made between spouses or civil partners (or those contemplating marriage or civil partnership) concerning their assets.

Work will commence in September 2009 with a report and draft Bill due to be published in September 2012.  

There are of course separated or divorced fathers who appear to be content with seeing their children for 1 hour in McDonalds and are happy to cancel arrangements at a few minutes notice if contact interferes with football or girlfriend commitments.  Ultimately there is no cure for anyone who takes that view.

For the purpose of this article however it is assumed that we are talking about a father who naturally expects to continue to play a full and proper role in the lives of his children after separation.

The recent resurgence into the media of the most well known father’s rights group may well cause this issue to be at least for a time hot political potato.

When this writer began working in the field of family law over 25 years ago, when a Decree Nisi was pronounced a custody order had to made in favour of one parent or the other, whether by consent or otherwise because if there was no order there would have been a legal vacuum with no one actually legally responsible for the care of the child.  Joint custody orders were rare.  All the legal rights and duties were vested in the person who had a custody order in his or her favour.  The other parent more often than not had an order for “reasonable access” with the parties (then as now) being left initially to sort out their own arrangements.

When the Children Act 1989 came into force it brought with it the concept of “Parental Responsibility”, which ensured that divorced parents retained equal legal status, although this is reality did not solve the actual problems on the ground as to where the children lived and how much time they spent with each parent.

When one spouse begins divorce proceedings he or she must file a Statement of Arrangements for children, which will include a proposal as to where the children live and what contact arrangements would take place.   If no objection is raised by the other spouse the court will indicate that it is satisfied with those arrangements and will follow the principle contained in the Children Act 1989 that a court order should not be made unless it is necessary, and the parents are best left to devise arrangements to their own satisfaction without court intervention.

When the parties cannot agree the court may have to make a decision for them although before that stage is reached other options can be looked at (including mediation).

There is an argument that there should be a presumption of equal parenting and that this should be reflected in the time that a child spend with each parent.  The reality is that in many cases it is not physically possible to bring about a regime in which a child’s time is divided more or less equally between parents.  Issues come into play involving each parent’s work pattern, accommodation or lack of and of course school attendance.  Once work and school time are taken out of the equation there is only so much time available that can be divided between the parents and there is a contrary argument that a child needs above all some stability and needs to have one identifiable home while spending sensible amounts of time with the other parent.

There are situations however in which a shared residence arrangement is actually possible in practice and there is a greater willingness on the part of the courts to recognise what is actually happening in those circumstances and to make appropriate orders.  There does not necessarily have to be a strict 50/50 division of time for a shared Residence Order to be appropriate.

At the end of the day what one is looking at is the issue of how much a time a child spends with the mother and how much time with the father and it could be argued that it is immaterial as to whether a situation is described in terms of a child residing with the mother and having contact with the father on specified days or in terms of both parents having a Residence Order and defining the time that a child resides with each.  The end result might be the same but the “labels” would be different.

There could be an argument therefore that a shared Residence Order is only cosmetic in effect – although to take the analogy further perhaps there is nothing wrong in a cosmetic description that makes those involved feel happier and more confident about the situation.  The point can also be made that the shared Residence Order sends a message that there are no preconceptions and assumptions about which parent a child is actually living with.

The benefits structure unfortunately has not caught up with shared residence situations and income support and child benefits continue to be awarded on the basis that there must be only one parent with actual care of the children.

If a parent is failing to have contact with children (for these purposes we will assume it is the father) then it is important not to let matters drag on in the often vain hope that the situation will improve.  It is almost impossible for any relationship between separated parents to be entirely devoid of argument and friction from time to time and sometimes situations will arise in which the parent who has the child living with them will take offence at something which has been done or said and stop contact that weekend.  While this is not to say that this is the right response, sometimes these are short term problems, which sort themselves out very quickly.  It should however become fairly obvious if this is a more serious problem and in such cases it may well need the input of mediation or an application to the court.

The first court appointment is designed to try to assist the parents in coming to their own conclusion without the case having to go on to a final hearing.  The first Dispute Resolution Hearing will therefore involve the District Judge speaking primarily directly to the parents rather than their legal representatives (who often, depending on the physical layout of the court room) will swap seats and sit further away from the Judge than the parents themselves.

If the court is not able to guide the parents into an agreement and if it is necessary for a case to be adjourned to a final hearing then this is where the frustrations of delay come into effect especially if the court requires a welfare report to assist it in making a decision about the children’s arrangements, such reports commonly taking some 16-20 weeks to prepare.

If contact is being unreasonably refused then it is important to be proactive as the person with whom the children lives may well have no incentive themselves to take any steps to resolve the problem.

Well, I dont know whether or not it was constructive criticism, but as I was just typing up my notes for my comedy class tonight my computer exploded!

I am now concerned that this is some kind of omen. I am also wondering if i can turn this event into a humorous story….

Daniel Stear

I am now officially half way through my intensive comedy course and I am beginning to wonder just how I am going to try and tie all the various performance and writing aspects together. I had no idea that being a stand up comedian was so much hard work!

I turned up to my second session slightly less nervous than the week before. However, I would be lying if I said I was completely calm about my impending performance. First up we continued and developed on some of the exercises we had done the week before. If anyone has seen the TV show “Whose line is it anyway”, then you can imagine the type of exercises that we were doing.

I have to say that again I did find myself enjoying these exercises. Maybe I was born to perform… This week I gave a “sterling performance”, (not my words, readers, but the words of my fellow comedians), as a film director in a scene involving a suitably bizarre chain of events that had to be worked into the scene. Doing this exercise helped me to learn about the physical side of our performance. It is not just what we say, but also the way we say it and the way in which we command ourselves on the stage. These are all ideas that can easily be implemented into our daily working lives, although I don’t know if I will be chairing any departmental meetings by opening with the phrase “did you hear the one about…”

The second half of the session was our first writing workshop and I have to say this was what was worrying me the most. I had managed to come with a few ideas prior to the workshop, but they were only vague ideas at best and quite frankly I had no clue how I was going to translate them into humorous anecdotes. We all sat round a large table and one by one we went through what we had come up with. We had a specialist writing expert with us this week who was able to offer comments as to what ideas were our strongest and we all pitched in and made suggestions for each other. There really is a “Dunkirk Spirit” amongst our merry band of amateur comedians and we all want everyone to really do well on the night.

After we have pooled our ideas and made various suggestions we broke off into smaller groups to try and work out what we were going to talk about and how we can go about turning these vague ideas into a fully formed set. So right now I am typing this and trying to do various word association exercises to try and find the punch line for one of my stories, (and no, I am not going to disclose what it is at this stage).

I very much hope that at some point over the next few days I am going to have some form of epiphany, whereupon I will see how all my various ideas fit together so I can come up with a fully comprehensive set list. I’m laughing as I type that, not at the result of my word association exercises but at the thought that by next Monday I will know exactly what my comedy routine is going to be about.

Daniel Stear

When sat in my final college of law examinations in the summer of 2002 the one thought on my mind was the prospect of soon being free of examinations and course work after 5 years of study. What I didn’t consider was that 6 years later I would be standing on stage at the Baby Blue venue on Liverpool’s Albert Dock pretending to be a bus conductor in the middle of a frantic, and frankly bizarre improvised scene.

I should just point out that I haven’t recently had a sudden change of heart and have abandoned a career in law in favour of following dreams of taking to the stage. Rather it is all part of Kirwans’ ongoing programme of fund raising events for our charity of the year, the Roy Castle Lung Cancer Foundation.

I and 5 other willing volunteers, (and I do use that word with a heavy degree of irony), have agreed to take part in crash course in learning the art of stand up comedy. For the next 4 weeks we will be attending workshop sessions to learn the various skills involved to become a stand up comic before taking to the stage ourselves in front of a live audience. Quite what happened to the days of simply sitting in a bath full of baked beans, I don’t know.

Having agreed to take part in the event, I must confess to being apprehensive about the thought of performing my own stand up comedy. In fact to say I have been feeling apprehensive is to understate my feelings massively. However, against my better judgment I went along to the Albert Dock on the 16th June for the first of my 4 sessions. Fears of being put on the spot to make people laugh within 5 minutes of turning up were preying heavily on my mind.

Our main tutor throughout the course is a comedian called Sully and he is armed with the arduous task of turning 6 professionals by day into Liverpool’s brightest new comedy stars. Our first session consisted of a number of activities designed to make us aware of our own physicality and also to get us used to being on the stage. We quickly went from some group exercises to performing a series of improvised sketches on the very stage that will have to appear on at our final performance. These ranged for the bus conductor scene already mentioned to a scene acted out entirely in gibberish involving two friends squabbling over whose turn it was to get the drinks in.

Naturally at the beginning of the evening Sully was hard pressed to find any willing volunteers to take part in the various exercises, which I have to say is not surprising given the fact that I was extremely nervous about the whole idea of performing before the course started and no doubt my fellow amateur comedians were too. However, I was somewhat surprised to see myself relax slightly as we eased into the various exercises and it wasn’t long before I was willingly volunteering myself.

By the end of the evening I had certainly become more relaxed with the idea of being on the stage and had identified those issues which I needed to work on before next week’s session, (not least of all my tendency to stand at the back of the stage, which is apparently as sign of nerves). Quite how all of this translates into becoming a well-rounded amateur stand up comic I have yet to find out, and certainly my nerves and anxiety about this haven’t diminished one bit.

At the end of the session Sully provided us with a note book and pen and told us to come up with 5 or 6 topics that we thought we could talk about during our routine. At the time of writing this it is nearly 48 hours later and I am still stumped. So if you see a young chap wandering around the streets of Liverpool or Birkenhead writing feverishly into a note pad, it wont be a car spotter or a tortured poet it will most likely be me. So feel free to shout out some ideas…

Daniel Stear

Step 6: Hanging around (again).

I initially didn?t think to write anything today, given that I don?t feel as if I have much to write about at the moment. Not much has changed since my last entry. I am still waiting to hear that the Seller of the property has provided replies to the enquiries that were raised of them, and there are still some planning permissions relating to the property that are needed. I am also waiting for the Buildings Regulations Final Certificate to come in. Building Regulations deal with the health and safety aspect of the building, (i.e. to confirm that the property was built in accordance with current regulations in this regard.

However, I have realised that just things haven?t progressed markedly over the last 10 days, that doesn?t mean that I haven?t got anything to write about. As time marches on with the whole buying process I am becoming to understand more and more how other buyers feel when they consider that matters are taking longer than they had anticipated. I am lucky that I can pop to the office over the corridor and pester my colleague who is dealing with the case for me, (and if they aren?t around I can have a look through my file anyway).

The reality of the Conveyancing process is that when you have to rely on a third party to do something, it becomes very difficult to say how long something will take. In my case I know that I am waiting for the planning permissions and building regulation consents. I know that these are going to be provided by the Seller once the local authority has provided them, however, at this time I don?t know when the local authority are actually going to send them through. I can have the seller?s solicitors chased up to see what steps they are taking to chase this up, but if the local authority haven?t done their part, then the seller?s solicitors wont be able to confirm how much longer it will take for them to deal with these outstanding points.

All of this is very frustrating, especially as I have set my mind on a date to complete. Ideally I would like to be completed by the Easter weekend so that I can use the two extra days to get everything sorted without having to take any extra time off work. Whilst the Seller?s solicitors have confirmed that they are working towards this timescale, they cannot actually confirm that they will be able to meet this deadline. With the property being empty, it is easy for me to see how other people who may not have as much insight into the Conveyancing process may find this position quite exasperating.

In such situations it is important to have confidence in your legal advisors so that you know that as soon as something happens, or as soon as a fresh piece of information comes in, they will contact you to keep you updated. For my clients I make it clear from the start that I will keep them fully updated as and when their case progresses. This means contacting clients by telephone or email to update them as soon as a mortgage offer is received, or if (in my case) required planning documentation is received. It is important that clients know who their point of contact is. My clients know that they can contact me directly or speak to my secretary. Not only can they contact me on the usual telephone numbers, but they can also contact me on my direct line.

For me, I was certainly glad that I only had to shout across the corridor to check to see if anything was happening with my case. Whilst my clients may not be able to shout across the corridor to speak to me, they can certainly give me a call or drop into the office at any time and I will be happy to talk through their case to make sure that they are fully updated. With the whole house buying process, it is quite common to feel as if you are completely helpless and at the mercy of a whole host of differing factors that will determine when you can actually buy that dream house. At least by having a good relationship with your solicitor you can discuss all these various factors so that you are fully updated, which will hopefully relieve some of the stress of the house buying process.

I say some and not all, because even I am beginning to get quite nervous about the process now, and I know what steps are needed before I can exchange contracts. Even though I know what is involved, it doesn?t stop me wanting to move in now. Especially because I am a first time buyer and not only am I looking forward to having a place I can call me own, but my parents are also desperately to reclaim the spare bedroom at home, which is currently housing all of my belongings.

The level of interest in this sad marriage breakdown has been unprecedented.  The divorce appears to have been conducted in the glaring spotlight of media publicity. There comes a point of course at which image consultancy and public relations exercises cease to have any relevance, and that point of course is when the Court is being asked to make a decision on the financial and property matters arising from the divorce. A summary of the judgement was issued following the conclusion of the hearing in the High Court on 17^th March 2008, and a full judgement was made available shortly afterwards. It would seem that the parties were poles apart as to their expectations.  Miss Mills was seeking something approaching £25 million and Sir Paul McCartney was proposing that she receive total assets of £15.8 million. The end result would seem to have been closer to Sir Paul’s position and judgement has been given that a lump sum of £16.5 million should be paid to her which when combined with her own assets of £7.8 million brings us a total of £24.3 million, which is the figure being quoted in the press.  The lump sum of £16.5 million is made up partly of a sum intended to capitalise a maintenance entitlement, together with funds needed to buy a property in London.  This has been an unusual divorce in many ways, being a short marriage with enormous wealth being generated by the husband prior to the marriage and brought in to it with him.  It is also a feature of the case that Miss Mills chose to represent herself at the final hearing.  It is noteworthy that one of the comments she made upon emerging from the Court was that she disagreed with the view taken by the Court as to Sir Paul’s total assets which she claimed were in excess of the figure £400 million put forward by him. In cases where considerable wealth is involved as much effort is spent in quantifying the value of the assets as it is in arguing about how they should be divided and this is a case where one might perhaps have expected very detailed forensic examination by accountants instructed by each party to resolve the fundamental issue of the value of the assets.  Inevitably a divorce of this nature must seem immensely remote from the experiences of ordinary people going through a marriage breakdown. However the lesson for more typical cases is that, despite the general trend away from simply looking at the wife’s needs irrespective of the size of the assets, there are cases when it will still be appropriate to look at the case primarily from the needs argument, especially where huge wealth has been created by one party prior to the marriage.  Simply being married for a short time to a very wealthy individual does not seem to create an assumption that there should be equal sharing.  It would have been interesting to have seen what might have happened if there had been a pre-nuptual agreement, not binding on the Court at this point, although there is evidence that such agreements are being given more weight than used to be the case.

The Home Office issued a press release as to the additional measures and funding which they were putting in place to help the Police tackle domestic violence problems over the Christmas Holiday period, which involved some additional funding being given to certain specified Police forces. 

Within this press release, the Home Office Minister is quoted as saying that a third more incidents of domestic violence related assaults are recorded on Christmas Day compared to the daily average.   

Family Law Practitioners need no convincing of that.  If the home situation is already unhappy, it does not take much imagination to see that things are going to be worse rather than better on a day when most of the country, whether by preference or of necessity, retreats into isolated family units.  The relentless pressure to create a perfect Christmas for ones family (just like on the telly) can be stressful enough but even worse when it is against the background of an already tense and difficult situation. 

It always seems to me particularly sad that on a day which promises peace and security (whatever else may be going on out in the world) that this day should also be for too many people a flashpoint.  Without wishing to appear sanctimonious, the presence of large quantities of alcohol can bring about its own problems (as indeed it may at other times of the year).  Against that sort of background Christmas Day can resemble an emotional pressure cooker.  I have one client already who can recount to me a situation in which it was necessary for the Police to be called not once but twice on Christmas Day. 

Domestic violence, and of course the less visible but equally insidious strategies of control and intimidation, are a year round problem. 

Paul Hunt, Partner

As a member of the ‘Resolution’ organisation, I have recently been asked to participate in a survey on opinions on introducing no fault divorce.  At present there is only one ground for divorce and that is that the marriage has irretrievably broken down.   That breakdown however has to be demonstrated by one of the five following facts.  

a)      adultery

b)      unreasonable behaviour c)       desertion for two years or more

d)      separation for two years or more when the other party consents to the divorce

e)      separation for five years 

 It is very often the case that I see clients who are quite certain that the marriage has broken down, and may have been living apart for some time (although perhaps for less than two years), but cannot point to any specific allegations of unreasonable behaviour on the part of the other spouse.   It is clear enough that the marriage is broken down, otherwise they would not be sitting in my office.  The requirement however to shoehorn each case in to one of the five available grounds can result in allegations of misconduct being made which would otherwise have been left unmentioned.   This can often cause a conflict with the overall preferred aim of dealing with the separation and divorce with as little blame and confrontation as possible.   The receipt of a divorce petition which is felt to include grounds which are either unnecessary or exaggerated can cause ill feeling, and get in the way of constructive discussions on matters relating to finances and children. There was an attempt to introduce the concept of a no fault divorce on to the statue books with the Family Law Act 1996.   This legislation was intended to set up a situation in which divorces were commenced by the filing of a statement of marital breakdown.    There was then to be a prescribed period for reflection, that period being a little longer if there were children.   There was also a requirement to attend compulsory information meetings.   There were some cumbersome elements to the intended system.  If for example the parties did not comply strictly with the time table imposed, they might have to go back and repeat a stage.  The system may have made it possible to omit controversial grounds for divorce but certainly would not have made it a quick process. This however did not come in to force.  The concept of no fault divorce therefore has been in abeyance for a decade and it is clearly the intention of resolution to seek to make this a live issue once again.    There still seems to be a residual feeling, which tends to surface in the popular press when issues of this kind attract their attention, that in some way a divorce has to be justified or “earned” by the misconduct of the other party and that something akin to “divorce on demand” would weaken the institution of marriage.  

I find it difficult to believe that anyone will make a snap decision to divorce simply because they have heard that the procedure for obtaining a divorce might be slightly easier than it was.   It is issues relating to finances and children and how those issues are resolved, that dictate whether divorce or separation is more or less painful. 

Paul Hunt