a question re barristers statement in family court for divorce.

[greenberet]

does a barrister have any responsibility to make sure that what he says in his position statement presented to the court is factually correct.

due to circumstances beyond my control and too complex to put on here i ended up being unrepresented at my final hearing the outcome of which was financially disasterous for me.

Due to mental health issues (long term) i have only just managed to pick up where the hearing left off (march 2017)

the X's barrister states in his position statement that "i am a qualified financial planner and that i will need to bring my skills uptospeed after a career break to look after kids."

I was an IFA over 20 years ago - i am not currently qualified and my career break is 20 years - not having worked as didnt need to and also suffer with long term depression which more than likely will effect my ability to work and prospects.

I am trying to claw back whatever i can and just want to know what a barristers responsibilities are - thanks

A barrister cannot make statements to the court that they know are untrue and they cannot make up "facts" to assist their client. However, they are entitled to accept any statements made by their client. They do not have to independently check them. I would imagine that your ex told his barrister that you are a qualified financial planner so, unless he knew your husband was lying, the barrister was entitled to put that to the court.

Thanks prh

If OP's ex misled the barrister though in something that was then presented in court, is there no comeback? It seems a potentially gaping loophole, because obviously barristers can't check everything out.

To greenberet. Both Solicitors and Barristers will initially assume what they are hearing from their clients to be correct. After all what is the logic in lying or misleading people whose expensive time you will have to pay?

Ultimately it is the Applicant who has to demonstrate their maintenance Claims. The Respondent does not have to disprove anything, but will be asked to provide information relating to assets and income as will the Applicant.

CM (Child Maintenance) will be based on the NRP income only and there are online calculators available to help. Child Maintenance is not in the scope of the Courts, but may be included in a Consent Order for completeness. Before the final hearing the NRP will have been asked to make contact with CMO/CSA and obtain a written statement as to what CM should be paid. CMO/CSA will assume that NRP has provided correct Income Details. Child Maintenance can be re-visited at any time by either parent if one thinks the initial assessment was wrong.

SM (Spousal Maintenance) is a more complex issue. Applicant is meant to prepare a list of all income from all sources and a list of all essential outgoings. If outgoings exceed income then Spousal Maintenance is meant to make up the shortfall assuming the paying partner can afford after taking into account their income and needs too.

Key word here is "needs". SM is meant to cover needs only. It is not meant to provide receiving partner a lifetime pension and life of luxury. Judge Mostyn has provided the most detailed guideline for SM. He clearly stated that SM is for needs only and also recorded that Ex-Wife's budgets were excessive and seemed to be written with pen dipped in vitriol. ie expectations were based on; greed, anger and revenge.

As it was a Final Hearing was there not a consent order issued which stated that there were no further claims for; capital, assets and income from either party? If so then maybe difficult (and hence expensive) to challenge. However, if it can be established that disclosure was incorrect and partners have more assets, savings, etc., than that was used by Judge to make a decision an appeal could be made, but costs are likely to be high.

My ex-wife had Barrister Present at Final Hearing, but she had been brought in at last moment and was therefore not up to speed like my Barrister who has been on case for over a year. Asset split was not an issue. SM was the sticking point.

Ex wife sought 4,500 per month for life as she had a chronic back problem that prevented her from working. My Barrister squashed it immediately on the following grounds:

Ex wife had not included this information on Form E submitted many months earlier.

If ex-wife had chronic back problem how did she explain her Gym membership for last 7 years?

Judge in summing up remarked that this was another sad example of a scorned ex-wife basing her expectations on greed as opposed to need. Final award for SM of 400 per month for 4 years as by then ex-wife could have re-trained and work full time to support herself. Reference was also made to Lord Pritchard "get a job" ruling.

If OP's ex misled the barrister though in something that was then presented in court, is there no comeback

If the OP had been represented or had represented herself she would have been able to point out that the statement was untrue. At this stage she needs to take proper legal advice to see if an appeal is possible.

Final Hearings are meant to be just that - Final. In my case the wording of the Consent Order was clear that the order represented full and final satisfaction to both Parties and neither was entitled to make further claims against the other for capital or income.

In greenberet case she was present at the Final Hearing so had the opportunity to convey to the Judge the information that is presented at the start of this thread.

Appeals are possible, but for sure will be costly and burden of proof will be on the partner lodging the appeal to show that either circumstances have dramatically changed since Judgement was made (Barder events) or that other partner had not provided full disclosure and had hidden assets. Good luck to anyone who goes down that route

Just to make it clear I suffer with long term depression and my mental state was not good at final hearing. I intended to have a barrister represent me who let me down two days before hearing.

X' barrister questioned my MH and implied it did not exist despite their being sufficient evidence from GP and MH team. He continued to say many people are able to work despite having depression. He ground me down to a point where I admitted feeling suicidal at times. This is not something anyone wants to admit to because their is still a stigma attached.

I was unable to function in the afternoon. I only received the barristers statement on the morning. The second day I was even worse.

This barrister had represented x at hearing for house sale - he knew how emotional I become under pressure and used this so that I could not focus and ask questions as I needed to.

I could not contemplate an appeal within the 21 days as I was emotionally distraught . I am trying to see if there is any way I can rescue my financial situation. I had a barrister who represented me for one part of the final hearing who said my trial had been unfair.

I had to confirm I was fit for trial which I did but assuming I would be legally represented. The judge and x barrister took this to mean I was fit to act as lip which was not the case and was confirmed by MH.

I am putting together a complaint to ombudsman but feel this particular barrister has misled the court in addition to abusing my mental health. I want to know whether he has any professional duty to the court over and above that of his client

Traveller - I have come to learn that all judges do not share the same views and the outcome of a case is influenced by their own personal views. In my mind this makes a mockery of the whole system - there is no consistent approach and the outcome does not seem to be based on law or fact but whichever side can present the best case.

My view is that LIPS are not particularly well liked especially if one side is represented - why would they be when barristers have had to go through years of training and then they find themselves up against joe bloggs. If joe bloggs is able to 'win' his case what message does this give.

I could identify all my x,s fabrication and disprove it all but with his underhand tactics such as only providing his statement at court which were all supported by his solicitor and barrister I didn't stand a chance.

Those cases that are quoted what we don't know is did the husband have an affair with the woman he had a child with. If so then it is no wonder that the wife was angry - probably not for herself but the fact that he has ruined his kids family unit.

The impact on children is not yet fully accounted for - the saying kids bounce back is rubbish and is for whose benefit - kids don't cope well with 2 homes - they have one home and that is with their mother. You just have to read many of the posts on here to see how many adults are still coping with the fallout of divorce.

Traveller
After all what is the logic in lying or misleading people whose expensive time you will have to pay? to ensure they come out financially better off than they reasonably should to make themselves feel better for having an affair in the first place by painting the ex wife as bitter and greedy and therefore making it ok that they had the affair because the wife is such an unreasonable human being and nobody could live with her.

It sounds like your ex wife did fabricate with the gym and back issue. I had medical evidence re my depression which has been treated with ADs for the last 20 years and this was dismissed by the judge. It seems her opinion on mental health overrides those that are qualified in this area.

Welcome to the legal system OP. I'm sorry that you are unfairly finding yourself on the wrong side in the court. It's horrific. I guess there will always be barristers who want to win the best hand they possibly can for their client and that is fine as long as they stay the right side of ethical and the opposition also has hard hitting representation.

I disagree with you on one point though. Kids do perfectly fine with two homes when both parents put their anger and resentment aside (a huge ask in many cases) and put their children first. But that requires two strong and reasonable people.

As for Judges, well, some should not be in that seat.

Get yourself a great barrister is my only advice.

What type of order did you get OP?

Realistically the only order that can be varied are maintenance orders.

To Green Beret. Open offers are meant to be exchanged 14 days before the Final Hearing. Statements presented by Barristers are meant to nothing more than summary of case and evidence provided by the Parties.

In my case ex-wife was the applicant and therefore burden of proof was on her to substantiate her maintenance claim. This is where she failed. The disclosure she was ordered to give (bank statements and assets in her home country) were never produced. Many statements she made were disproven by myself such as:

If she has bad back how did she attend Gym for 7 years?
If there was no money in her home country why was their evidence of money being sent by Western Union to her home country for 7 years?
If house in her home country (the one I gave money for) was uninhabitable and could not be rented how did she explain all the photos on Facebook of her family living in house?
If the claimed essential expenditure of 4,500 was actually happening where were the receipts?

He entire case from beginning was based on attempts to blacken myself and gain sympathy such as:

He has not maintained me or our child. Incorrect as I was paying all house costs that totalled over 1,000 per month. Two cars (Porsche and BMW Convertible) at over 1,000 per month. I was also paying Stepdaughters University costs. My bank statements proved this.

He has huge money hidden. No proof whatsoever was presented to support this statement.

What I thought was strange was that Ex-Wife's advisors had been given all the documents that proved claims were incorrect, but still continued to present them to the courts? Obviously they were not too bothered about their credibility as long as they got paid as demonstrated by fact they charged ex-wife 8,000 for final hearing compared to my costs of 1,500.

Key thing to remember is that Financial Settlement is based on needs and what is available. Reasons for divorce are irrelevant and do not influence financial settlement in anyway unless in exceptional circumstances such as domestic violence and one party has been injured which effects their ability to work. So even if partner had affair with someone else it has no bearing on the financial settlement. Scorned partners (usually the wives) should be aware of this before they embark on a crusade of revenge. My ex-wife tried it and the only winners were the legal people.

If your ex has misled his Barrister that is fault of ex and not the Barrister.

As pointed out by Allthebestnames are used it maybe possible to change the maintenance part of the order, but for Assets and Capital very doubtful.

I want to know whether he has any professional duty to the court over and above that of his client

As I set out earlier, a barrister cannot make statements they know are untrue. In a criminal case, for example, if the accused tells their barrister that they are guilty but want to plead not guilty the barrister cannot represent them. Once the accused has admitted guilt the barrister can only represent them if they plead guilty. However, if the accused maintains their innocence the barrister can (and, indeed, must) represent them to the best of their ability no matter how obvious it may appear that the accused is actually guilty.

If the barrister in your case was following your ex's instructions they have done nothing wrong and any complaint will fail.

kids don't cope well with 2 homes - they have one home and that is with their mother

I don't know the details of your case but this rings huge alarm bells. Given the overwhelming evidence of the benefits to children of maintaining relationships with both parents, any mother who goes into court with this attitude is going to be disappointed.

Your posts suggest your ex had an affair. You are understandably very angry about this. However, his affair does not affect the financial settlement nor does it affect the arrangements for the children. You don't get any more money because he has been unfaithful. He doesn't get any less contact with the children because he has been unfaithful.

thanks for all the replies

I'm not angry that he had an affair - i have been given a lucky escape from an abusive marriage.

im angry at the system that was supposed to protect me and realise it was my initial legal team that were not up to the job and basically just paid lip service to me whilst raking in the fees.

I got told I ask too many questions - and I am too suspicious - i asked the questions for a valid reason and my suspicions have all proved as being correct.

My X did not mislead the barrister he lied -

I have depression that affects my ability to work as confirmed by medical evidence however the judge seems to think i will be cured in two years time - just shows her ignorance of mental health issues - im sure anyone suffering would love to be cured!

this is like telling someone a limb will grow back!

Im not sure what evidence there is about the benefits to children of maintaining relationships with both parents - if both parents are reasonable yes i get this - but when one is not reasonable it just complicates matters and does continual damage to the kids involved

we are way behind the times in this approach - it will come out eventually but by the time it does how many more kids will have been affected buy this outdated way of thinking

How do you know for definite you can't work on 2 years time? I'm sorry you didn't get the judgement you wanted but that is a risk with going to court.

My ex-wife was taken to the cleaners by her Solicitors. Told her what she wanted to hear and sadly she believed them. Joints lives maintenance, 100% of all assets, etc., all promised. They typed whatever she told them to type even though documents provided during disclosure demonstrated their statements were wrong.

Could be coincidence, but ex-wife's solicitors were on holiday for the week of the Final Hearing. The so called sensible Open Offer was the same as they had prepared 5 months earlier which asked for more assets than existed!

Lesson for all those who are going through divorce is simple. Keep Legal involvement to a minimum and be truthful during disclosure. If one, or both, turns the divorce into a contest and makes statements that the other partner knows for sure are lies then there will be only one winner - the Legal People.

Keep Legal involvement to a minimum and be truthful during disclosure.

Or in the alternative, tell your lawyer you want a settlement that is fair to both parties, and that you're not looking for a big fight. The lawyers can only act on instructions, and if the client tells you their ex is lying about disclosure you need to do some digging, and that costs. However if there's no evidence the "hidden" assets exist at the end of all of that you need to be realistic in giving advice.

Note: not all clients take the advice they're given.

Very possible that's what happened in my case. I had same advisor from beginning to end. Ex-wife was on number 3 by time we arrived at final hearing. She made fools of them at FDR by not telling them key facts and being economical with truth. My advisor squashed almost all that was said with documentary evidence.

Or in the alternative, tell your lawyer you want a settlement that is fair to both parties, and that you're not looking for a big fight

collaborate on many occassion i told my legal team i just wanted to get out of the process - didn't want to go to court - but they kept saying we are worried you wont be able to manage - you have a really strong case for joint lives spousal etc etc

i told my solicitors the x was lying - came up with the evidence and they discounted it or said we'd deal with it at final hearing -

i used an offer they had made earlier too on the basis that if this was "fair" the settlement would be pretty close - it was nowhere near - infact i told them sometime back what he was hoping to achieve and he did - im just waiting for one last piece to fall into place -

in my case - i wish i hadnt taken their advice - i wish id gone with my gut instinct and cut & run - i would be financially better off and saved myself and my kids a whole load of emotional turmoil

barrister/collaborate - what do you advise i do with this

traveller my solicitor was also on holiday at critical times - even sent me to court unrepresented as thought it would be better for me.

redhelen ive had depression all my life - even when my world was "stable" i still had symptoms which meant i could not predict what would happen from one day to the next, regardless of the fact i need to sleep every day otherwise i get overly frustrated - lack of energy recognised sympton of depression - if theres an employer that gets this let me know - funny i was at a trade show last week and they are only just bringing mental health awareness into the workplace - 20 years after i left employment due to stress and mis management - it felt like i had been in a time warp!

To Babybarrister. I never believed that three different consecutive solicitors gave bad advice. More likely to be that ex was not hearing what they wanted to hear. However, the Judge at FDR made a very unusual recommendation which was Joint Lives Spousal Maintenance even though ex was aged 48 and in good health and had already been working for a year prior to the FDR and had a debt free house of their own? Maybe that is what convinced ex to proceed to Final Hearing? Joint lives was requested by ex's barrister and to the amazement of the Judge they quoted what had been said at the FDR. Judge reminded ex's barrister that FDR is an off recorded event and may not be quoted in any subsequent Court Proceedings. Judge applied common sense and stated that someone aged 48 and in good health and who was already working could never be awarded Joint Lives maintenance. My Barrister presented the Lord Pritchard "get a job" ruling and Judge Mostyn ruling on Spousal Maintenance to which Judge fully supported.

When it was all over ex-wife's closing comment was that UK legal system and UK in general is Racist. Not that stopped her claiming over £700 per month in benefits (which is more than my father's pension after 40 years working in NHS) even though she has never paid a penny in UK Tax! If that's considered fair then maybe UK law does not an overhaul?