• 30 June 2019 ‘How not to conduct divorce proceedings’ by Beth Mason

    A High Court family judge has criticised a well-known firm of family solicitors in a case that he says should teach lessons “about how not to commence divorce and financial remedy proceedings”.

    Whilst delivering judgement in the case of ABX v SBX [2018] EWFC 81 Mr Justice Francis took the opportunity to criticise both the husband in the matter and his solicitors for the way in which they had commenced divorce proceedings and the associated financial remedy proceedings.

    The wife in the case claimed that she had had no knowledge of her husband’s belief that the marriage was over until she received a letter from his solicitors containing a draft divorce petition prepared on the basis of her behaviour. Although the behaviour particulars were anodyne, Mr Justice Francis was of the view that “it will rarely be appropriate to send a draft petition at the same time as informing the surprised recipient of the shock news”. He accepted that there may be some circumstances, such as a jurisdiction race, in which such action was necessary, but there was no such justification in this case. Mr Justice Francis further noted that the husband was, at the time, engaged in an extra marital affair and he could (and arguably should) have invited the wife to petition on the basis of his adultery.

    Mr Justice Francis’ second criticism was in respect of the issuing of financial remedy proceedings by the husband’s solicitors who wrote to the wife’s solicitors and asked them to agree not to issue an application for financial remedies whilst the parties tried to resolve financial matters through a voluntary process. The wife’s solicitors agreed. A few days later the solicitors filed the husband’s application with the court without notifying the wife’s solicitors that they intended to do so. During the course of the proceedings the husband’s solicitors informed Mr Justice Francis that they had done so merely to “put a structure and timetable in place”.

    Mr Justice Francis said that he felt it was “plainly wrong that the husband’s solicitors should have acted in this way”. He considered that the wife was the rightful applicant, as there was no possibility of assets being ordered away from the wife to the husband, and that at the very least he would have expected the husband’s solicitors to contact the wife’s solicitors and explain what they had been instructed to do.

    Although Mr Justice Francis was clear that he did not consider that the conduct of the husband and his solicitors was such that would impact on the financial orders made, he did believe that it had exacerbated the difficulties between the parties, making a resolution more difficult and increasing costs on both sides. Such behaviour is, as the judge said, not only unhelpful to the parties but is “contrary to the duties of solicitors in such cases”.

    The Family Team at Harcus Sinclair are committed to the code of practice of Resolution, the national organisation of family lawyers committed to non-confrontational resolution of family issues. As such we believe in an open and straightforward approach. There are times when swift action and a firm hand are necessary, and we will always protect our client’s position, but we work in a reasonable and constructive way to achieve the best possible results with the least amount of time, stress and expense and are careful not to take steps which are likely to exacerbate the difficulties between parties.

“Naturally, you look for technical ability and the Sinclair Gibson team have it in spades.”