Letters roundup - 26 November 2018
Lack of foresight on civil partners
In seeking to put an end to the discriminatory practice of civil partnerships only being open to same-sex couples, the government runs the risk of creating new legislation that could be as beset with problems as what went before.
The announcement that civil partnerships were to be opened to opposite sex couples was hailed by many as progressive. Yet look a little deeper and the picture that emerges is of a government clearing up its own mess.
A lack of foresight before the original civil partnership legislation was introduced, plus costly delays while the government interrogated possible consequences, all led to the Supreme Court agreeing that the current law was incompatible with human rights law.
However, in seeking to address one issue, the government is in danger of facing further problems down the line.
A divorce based on adultery is a ground reserved for opposite-sex couples only. The Civil Partnership Act currently omits this as a ground for dissolution, given it is currently a partnership between same-sex couples. When civil partnerships are opened up to heterosexual couples, will they be able to dissolve their civil partnership on the ground of adultery? Will this option then be afforded to same-sex couples too?
Without forward thinking, I fear history will repeat itself. Just as same-sex couples were entitled to civil partnerships instead of marriage, they may one day be entitled to a divorce/dissolution based on a ground similar in all but name to adultery. In turn, heterosexual couples will naturally want this same choice afforded to them.
Ultimately, the Civil Partnership Act ended up being a short-term fix that is now here to stay. We can only hope there is more forward thinking put in place when it is extended to couples of the opposite sex.
Moore Blatch, Richmond, Surrey
Limits of litigation funding
The president of the High Court Family Division, Sir Andrew McFarlane, has said that courts are struggling to find experts to give evidence in family cases, an ‘acute problem’ that may have been exacerbated by cuts to legal aid.
Cuts to legal aid and a lack of expert witnesses in family cases highlight the serious financial issues the family courts are currently facing. In most cases legal aid cannot be obtained, so a suitable method of paying legal and, if appropriate, expert witness fees is essential.
In many cases, assets are either held in one party’s name or are tied up in illiquid or jointly owned assets in dispute. One solution to this is specialist matrimonial litigation funding, though unfortunately it is not always possible to obtain. Many funders are only interested in funding a purely financial dispute and may not fund those aspects relating to children. And certainly, in cases where there are insufficient matrimonial assets for funders to secure or take a view against, funding can be impossible to obtain.
Where there are negligible assets and the party seeking funding has limited income and the potential legal/expert costs are significant, funding is also often impossible. This can be particularly acute in Schedule 1 cases.
Furthermore, most mainstream funders have a minimum funding provision below which it is not commercially viable to lend. For instance, lending less than £10,000, even at high-teen rates, is not commercially viable given the specialist nature of the work involved.
Likewise, if the case is a jurisdictional one, where matrimonial assets are abroad or the party requiring borrowing lives abroad or has the potential to move abroad (often considered a flight risk) most funders will not lend. This, of course, also applies to a borrowing party applying for leave to remove a child from the jurisdiction.
So, while matrimonial litigation finance has, in many areas, plugged a gap left by the government when they cut legal aid, there are plenty of areas where funders cannot help, often with serious consequences.
Managing director, Level (family law litigation finance), London N1
The headline of your news item ‘Solicitor who acted without integrity….’ (22 October) misleadingly suggests the solicitor concerned misled his clients. On reading further, it emerges that a regulatory hijacking of the word is intended and the real meaning is excluded by the passing comment that his clients were apparently well-served. Sadly, this is only one instance of the profession succumbing to the new morality.
Nasrin Sotoudeh, Hoda Amin, Payam Derafshan, Farokh Forouzan… I could go on, and on. Those are just a few out of scores of the bravest of the brave – lawyers in Iran who have defied that regime’s strivings to have all political detainees ‘represented’ by those lawyers on a shortlist of 20 who are prepared to dance to the Mullahs’ tune.
Jonathan Rayner’s excellent report (22 October) prompts me to add those named and others just as worthy of acclaim and support as in all other fraught and non-democratic arenas. We must protest upon their behalf where their only ‘offence’ is to have been steadfast in doing their duty by those maligned, imprisoned, oppressed (and worse) merely for political dissidence.
The Law Society is to be commended for its continued protests on behalf of such heroes; so must it always intervene.
Solicitor and higher court advocate, Kings Heath, Birmingham