It’s hard enough dealing with the emotional issues of divorce, but then you have to visit a legal professional and that can be daunting, unless you have the right lawyer.
Marilyn Stowe is the senior partner at Stowe Family Law. She is one of Britain’s best known divorce lawyers and has handled many high profile cases throughout Europe. The Times described Marilyn as "one of the most formidable and sought-after divorce lawyers in the UK.” She is a Fellow of the International Academy of Matrimonial Lawyers and a member of the Chartered Institute of Arbitrators (CiArb). She is a member of two legal advisory groups to the British Law Commission; a body which advises the UK government about potential changes to the law.
That sounds intimidating, but Marilyn is someone who puts you at ease the moment you meet her. She’s a lovely, compassionate person with a great sense of humor.
Marilyn has over 30 years of experience in divorce and family law cases. She shares her insight and extensive knowledge through her TV appearances on the BBC and Sky TV, and her ‘Divorce Clinic’ on ITV’s This Morning. Marilyn is the author of three books: `Divorce -a New Beginning’, ‘No Looking Back’ and her most recent book, 'Divorce & Splitting Up: Advice from a Top Divorce Lawyer'.
Her blog contains a wealth of information for anyone who has concerns about divorce or family law issues and it is also a collection of beautifully written stories.
First Wives World had the pleasure of speaking with Marilyn about her divorce practice and overcoming the challenges of divorce.
I’ve been reading your blog. It’s really a great resource for people going through divorce, especially since you have such experience and have worked on a lot of high profile cases.
Marilyn: I have. Not only in family law, but also in cases involving a kind of miscarriage of justice. I got quite interested in the case of a lawyer, Sally Clark, who was convicted of killing both of her children. I helped get her out of prison.
I read about that case. What a tragic story.
Marilyn: I strongly felt that she hadn’t killed her children because they both died the same way at the same time of the year. I went to see a guy who makes cardio monitors for babies. He was a grandfather and his grandchild had died from cot death (Sudden Infant Death Syndrome or crib death in U.S.). He said to me that you’ll find that these children have a virus and he was absolutely right. It was terrible.
How did you get interested in the law? Your husband is also a lawyer.
Marilyn: He’s a lawyer and my son is a lawyer. I got interested because my father was very bright but couldn’t afford to stay on in school. He was from a very poor background and he had to leave school at 14. He always wanted me to be the lawyer that he never was, so I did. My parents made quite a few sacrifices to send me to this very expensive school and I took their advice. They thought that I would be a good lawyer and I went along with it at a time when women weren’t lawyers. My friends were getting married when they were 20 and I was sort of on my own wanting to go to university. My friends became secretaries. They took secretarial courses and got married and had children and I was 27 and not married, it was terrible! But it paid off and it was good.
What have you noticed about the difference in divorce laws in different countries?
Marilyn: I think the very big difference is that we have an emphasis on settling in England – settling, conciliation, and getting people to sit down, talk it through and resolve it. In England, it’s considered a triumph if you don’t go to court. The government is putting great pressure on people to settle and to go to mediation.
I think in America it is more aggressive. You can advertise yourself as aggressive. You can’t do that here. You can’t say, “I’m aggressive” because actually in England saying you are aggressive is not a compliment. It struck me that in America the emphasis is on let’s get to trial and let a judge sort it out. That’s not to say that cases in America don’t settle and that here cases don’t go to court, they do. It’s just how you get there; it’s a different route but maybe the outcomes will be the same.
Lawyers are trying to change that in the states. They are trying to go for more mediation and a more gentle approach because I guess they are realizing that the other approach isn’t the best way for people.
Marilyn: I am a mediator but I am also a family law arbitrator, which is something new in England. Arbitration is an alternative to a traditional judge in a courtroom but the Arbitrator still has the power to make binding decisions on the couple. It is new for family law, but alternative routes aren't popular in England and I think that many couples prefer a formal court and a judge. You can certainly emphasize that settlement is sensible, it’s cost effective and it preserves a relationship and there's always the possibility of settling before the case is heard in court. Many cases start off with litigation but the vast majority do settle.
What about when children are involved?
Marilyn: Children disputes are obviously very distressing. In fact, I’ve just been writing today about disputes over Christmas. I was just listening to a journalist on the radio here in England about how she and her husband had resolved who is having the kids when and where. It is just a case about being practical about children, but so often children are a weapon and that is the same all over the world, isn’t it? Very hurt people fight over children because that is the only weapon and they know that is the weapon against the other party and they’ll use it. It’s awful and again, the courts are saying be sensible, get it settled and go to mediation, but again, sometimes the only thing you can do is go to court.
I see you do a lot of TV appearances where people call in and ask questions and you’ve written some great books – all great resources. You provide all kinds of forms and educational material on your website.
Marilyn: The latest book, Divorce & Splitting Up: Advice From a Top Divorce Lawyer has sold 4000 copies in England and abroad, including in America. It’s the biggest selling divorce book in this country and all the proceeds have gone to charity. My firm funded the cost of the book myself. We then paid all the proceeds to the Children’s Society which looks after children in care. I dedicated this book to my parents who both unfortunately died in January 2013. I wanted to do something in their memory that was good. I'm pleased to say they saw it with their names on before they passed away.
The whole divorce process is so intimidating. A lot of people have never been to a lawyer before.
Marilyn: The worst thing that has happened in my country this year is the removal of Legal Aid. When I began my career, most people could qualify for some form of legal aid so they could go to court. That has been decreased to such an extent that in April, for all but a tiny fraction, Legal aid ended and I have been swamped – the blog, the TV program with people asking for help, not just a little question, but what do I do about my case because I can’t afford a lawyer? The situation is terrible.
How are you supposed to litigate a case through the court? I think that if the government ran Legal Aid more commercially, it could still make a profit and it would pay. They could do it in a sensible way but they just decided no and so this is the outcome. It’s the poorer party of course that loses out; the richer person can afford it. They’ve introduced a provision where you can apply to the court for an order that your opponent pays a contribution towards the costs, but frankly there are hoops to jump through and it’s certainly not enough.
It’s hard for low income people, which I suppose is why people are doing their own divorces.
Marilyn: If you’ve got a complicated case and if you’ve got assets worth fighting about, you can generally afford a lawyer or you can do a deal so that ultimately, but not always, you can pay back your fees. If you are a middle income couple, it's not an automatic 50/50 split, English law is not straightforward; it’s not a straight division. It can vary. It’s all about meeting reasonable needs of both parties, so it’s not easy to work it all out and not easy to know what cases to use and so on. A middle income couple with limited money to throw at a divorce who once had legal aid, they repaid to the state at the end or when the house sold, are now finding themselves at a massive disadvantage. They do it themselves and they clog up the courts and say to the judge, you help us. The judge says, well I’m not here to sort out your case, you’ve got to tell me about your case. The judges aren’t happy about it, so the courts are quite jammed with these cases – litigants self-representing. I’m sure it is the same in America.
I guess wealthy people have prenuptial agreements to protect their assets.
Marilyn: Prenups and postnups aren’t automatically binding at the moment. They may become law soon, but at the moment they aren’t. We advise people to do it because the chances are if it is done correctly the court will uphold it, but it’s not 100 percent guaranteed.
Now gay marriage is legal in some states and in Canada, so now there are divorces between same sex couples too.
Marilyn: For gay couples we currently have "civil partnerships" in England it's the same as marriage under another name. Gay couples don't get "divorced" rather it's called "dissolution of civil partnership" but it’s the same and it’s the same law that applies to them. Gay "marriage" is being introduced in 2014 (in England). I think the first gay marriage is going to be the 29th of March. It’s that term “marriage” that has been very contentious over here, but it has gone through. And to be fair David Cameron did do that, he made a stand and a lot of his party were very reactionary and didn’t want, it but he did push that through, overall I think that is a good thing.
It’s still a contentious issue in the states.
Marilyn: I think British society is extremely tolerant. Law follows the culture and norms of a society. I think one of the big problems that we have here however, where there is still a huge stigma in law but not in society, is the difference between divorcing couples and cohabiting couples. We don’t have specific law for people who live together and then split up. Why not? Because it’s a step too far for every government because I think they take the view that that’s very anti-marriage and it could lose them votes. If they introduce law for cohabitants, it’s kind of sanctioning something some people believe is immoral. Yet as many people are living together now as are not living together, so why not have law for it? I was on the legal advisory group for the Law Commission which recommended new cohabitation law to the government which would give limited legal remedies to qualifying cohabiting couples, not the same as divorce, but the government put it on ice and said they wanted to see what happened in Scotland, where there is a separate legal system. They do have cohabitation law there. In a leading case our Supreme Court also said look at the Scottish and do the rest of the United Kingdom so we have this bizarre situation where there is Scottish law, which actually works very well but nothing anywhere else: England Wales and Northern Ireland. It’s desperately needed for the rest of the United Kingdom, but they still won’t do it. To me, as a family lawyer I think that is the single biggest issue we face in this country in the family law arena.
Yes, that’s true; it is the same in many places in the states as well. There are so many couples who live common law and there is no real protection or ways of resolving these issues.
Marilyn: For couples who have an argument about a house, what they do is they have to use chancery law, bringing say a complex Trusts of Land Act action to try and get something sorted. Chancery law is not like family law, Chancery law is very precise. It’s all about what is written in the statute and there is no room for discretion.
In family law, discretion plays a huge part – what looks right for this particular family, that’s what our family law is based on – discretion, so it just doesn't fit. Sometimes you get cases where you have a couple who lived together for 30 years and then the guy has found somebody else and the "wife" in all but name comes to see me and she says, I’ve never worked and I’ve got no pension, I’ve been a mother to our children, I’ve got no home, what claim do I have to share in everything we've built up? The answer is nothing.
There is no automatic entitlement to anything. You have to think, well can she make a claim over a property even though she doesn’t own it, is it possible? It’s very risky, but there’s no entitlement to pension, sharing income or sharing capital even though they have lived together for 30 years and with a married couple together for the same time it would be a very different thing.
I have a passionate interest in that because it is so fundamentally unfair for a society which has evolved so dramatically over 30 years. You can't turn back the clock and force people to change. So as a lawyer you want to help people to deal with things fairly and it’s very unfair.
It’s so important and you are the first lawyer I have talked to who has mentioned this.
Marilyn: I debated a couple of years ago at Oxford and there was a debate. “Is marriage out of date?” The same debate was heard in the House of Lords, Cambridge and Oxford all on the same night. I got the short straw – I was asked to propose the motion at Oxford. You can read the speech I gave here.
There was a black tie dinner beforehand, when I was told there was no way Oxford would ever vote marriage out of date. In the end Oxford, Cambridge and the House of Lords all voted that marriage was not out of date.
What countries do you work in?
Marilyn: We are members of the European Union so our work is mainly European although we do act for clients in the rest of the world. We had a fascinating case involving a couple both living in Japan heard in England. But we do have the situation in the European Union member states where wherever you issue your petition first is where the divorce happens. That’s very important usually for finances. For example, if a client phones us from Spain or from France and says I think I need to get divorced, my husband is having an affair, she doesn’t really have the time that a woman who lives in England and is thinking about it has because basically, there's a mad rush and it’s the first out of the starting box who wins jurisdiction. We need to get proceedings issued usually in England for a wife, providing we can make a case for it being heard in England.
It can make a massive difference to the financial settlement. A wife in England can get spousal maintenance for life, she can share in assets, the disclosure requirements are very strict, and of course it’s in her language and her legal system which she understands, which is a huge benefit. Conversely, it might be the husband who is far better off proceeding in France, Spain, Italy and so on. So these trans-European cases are great because they are so fascinating. It’s getting the jurisdiction right and making sure that the argument fits. Its great stuff, I enjoy those.
Do different countries have different grounds for divorce or do they all have what we call no fault divorce?
Marilyn: It is all very different. In England the irretrievable breakdown of marriage is the sole basis for divorce, but you’ve got to prove it. Adultery and unreasonable behavior will get you an immediate divorce and then there is separation and desertion, but you’ve got to wait two years, or five years if there is no consent.
The way around that is either with adultery or unreasonable behavior, but you‘ve really got to make sure that you not only fit the jurisdictional criteria but also that you’ve got the basis to issue the petition. It’s tricky stuff.
I can’t believe how active you are, I don’t know where you find the time to do all your legal work and your blog and education for people that don’t know where to turn.
Marilyn: Well I prefer being very busy. This last weekend, the blog had its millionth viewer and it’s not bad for a solicitor who just decided to set up a blog. Now I have a web editor and several contributors daily. But it's necessary. We've had a huge growth in numbers in the last year. The aim is to inform and to keep informed, entirely free. We carry no advertising. That’s why we’ve also got forms on the blog, showing people how to fill them in and showing them what to do. When I go on the TV, I also try to guide viewers who can't afford lawyers to websites that will inform them. The government has some good websites which aim to help people and they do to an extent, so I’ll sent women to those websites and hopefully they’ll have a basic understanding of what needs to be done.
I think that’s a big part of it. If they have those resources it makes a big difference because it is scary.
Marilyn: The scale of unrepresented people now is scary. I mean you get people contacting you and there isn’t a lot that you can do, it’s just not possible to help, but then you get cases where you can help and you do your best. Another tricky area for England involving wealthier couples, where on party is at a big disadvantage, is trusts. Some countries don’t have trusts at all, but in England assets can be owned by a trust and one party hopes that because the trust isn’t technically owned by you it’s separate and can’t be touched. The other wants to break the trust. Some of them involving aristocracy are hundreds of years old, so called "dynastic" trusts. Some are set up by the wealth creator. There are some fascinating cases at the moment about whether or not it can be touched or whether you can alternatively put it into a company name. We have cases where there are millions put into trusts and companies and you somehow have got to get round that, it’s far from easy.
I used to work as a private investigator and we worked on a lot of hidden assets during divorces.
Marilyn: Sure, it happens. I enjoy those cases. I enjoy a challenge, but that doesn’t mean to say you can do it in every case, but in some cases you have some spectacular results. In one case, we tracked someone all around the world, simply from a business card the wife had found in the husband’s pocket showing he had a German company that she knew nothing about. We have a German lawyer who works here, a dual national, and he tracked this guy on the German web and found him all over the place.
If there was one piece of advice you could give women, what would it be?
Marilyn: I firmly believe before you go through the process, get some good counseling and get your head in the right place. I am writing a piece for the Solicitor’s Journal over here in England saying instead of throwing money at mediation insisting on it at the beginning of the process, at a time when it is far too soon and people are too raw, the government should provide facilities for some good counseling so that people can calm and come to terms with it. That way, I really do believe people’s divorces will be much better and much more sensible. I say that equally from my own experience this year from losing my parents, where I didn’t think I needed bereavement counseling but I did. Once I'd started I felt so much better. Counseling gets rid of all the negative and leaves you looking forward and positive.
Then I'd recommend getting legal advice from a good lawyer. In the UK many law firms offer a free first appointment or free legal sessions. You need to make sure the assets are all pinned down and safe. Then go for it, but be prepared to settle commercially and if possible with a view to keeping a relationship going, especially if there are children.
Thank you, Marilyn, for sharing your expertise and insight with us.
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