Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

Jail Sentences for Company Directors? Put on Your Hard Hat and Read On.

In recent times Companies could be forgiven for thinking that the so-called ”compensation culture” in Britain is getting vindictive, and that they are being singled out to carry the can and provide compensation for injuries which are absolutely none of their doing.

I have blogged about Wm Morrison Supermarkets plc being held responsible to compensate for injuries suffered by an innocent customer who was brutally attacked by their petrol station cashier in a completely unprovoked attack. – Link Here –

And a second blog, – Link Here – when coincidentally Wm Morrison Supermarkets plc were yet again held liable to provide compensation for perhaps millions of customers and suppliers and contacts whose private data was published on the internet by an employee in its IT department

That person had nursed a grievance which appears to have become an obsession and deliberately released the private information specifically to hurt the Company.

The thinking seems to be that if a link however tenuous between the criminal and the company can be established, then the company must pay – is in legal speak “vicariously liable”.

In the first case, if the petrol station attendant have finished his shift and then attacked someone on the bus home, there would have been no such link. The link was because he was at work (BUT! – his work and training did not include bashing the customers – never mind).

In the second case, it is not so clear. What if that criminal had nursed his grievance, had stolen the files and loaded them onto his private computer and then released them later, perhaps a year or five after leaving work with Morrison. Probably no different outcome there since the causal link was, according to the court, the failure of the business to ensure that the data theft could not have occurred. (How exactly, one wonders? Perhaps by having computers which could only be operated by two people together, like having two people flying a plane. Is that how IT Departments must work now?)

The thinking behind it is clearly that the Court and behind it the Government thinks, that by and large people should receive compensation for being hurt, physically or financially and so someone or something has to pay.

But in those cases, the losses will be borne by the Company. Which means, by the shareholders, the private investors who own the shares. Many might be owned by pension funds, so the value of pensions is reduced, but the losses are spread between many and no single person or fund has to pay the full amount.

That is all by way of preamble and scene-setting. It relates to “Civil Law”.

But if a company turns out knowingly and deliberately to have employed criminals, of course, there can be “Criminal Law” consequences.

I think that no fair-minded person would think that any particular Director of Wm Morrison Supermarkets plc should be charged by the police with any crime in respect of the petrol station attack or in respect of the actions of the man from the IT Dept. who seems to have suffered a breakdown.

But there is no real reason to think that our Government or any previous one is “fair-minded”. And fairness is a moveable feast.

All of us in this country are invested in the financial success of UK. If UK is seen in the world to be a trustworthy place of business, with courts of justice which are unbiased and predictable in the application of justice and resolution of disputes, then the world will trade here. And there is a correlation between worldwide perception of trustworthiness and financial health.

Will you base your investment strategy upon putting your money predominantly into Venezuela and Nigeria or the Central African Republic? They are all way down the bottom of the list of Corruption Perception globally – Link here –

Any coincidence? –  They are some of the poorest countries of the world -Link here –

If you compare the two charts you will not be surprised to see that [arguably, oil wealth excepted] there is a link between a Country being considered to be a place where trade and commerce is honestly conducted being also a wealthy country. And a dishonest one, is poor.

So it would seem that if we are all invested in UK being a wealthy place, we need UK to be perceived to be an honest place. No corruption, no bribery.

So, the Government seems to be thinking, how can we reduce corruption in England in our commercial dealings? Clearly most commercial dealings are undertaken by Limited or Public Limited Companies and they all have directors steering the ship.

The trouble has been, Directors get their rewards from boosting the bottom line of the company that employs them. They don’t earn another penny, quite the opposite, for putting a stop to bribery that might win a contract.

And also, at present it is a difficult job to prosecute a director in the Criminal courts. All he has to say really is “I didn’t know this was happening, I certainly did not order it” and he won’t have to go to jail.

And the law tells Directors what to do and how to behave. So if your Company is doing business with somewhere low on the CPI list, you are dealing with a place where you might be asked for bribes for contracts. Or you might see that the price of goods there can only be achieved by child labour or even slavery.

At present, a Company Director might be tempted to say to his representatives in the foreign Country – just get the contract. Don’t tell me too much about it; I don’t want to know. Thinking, close my eyes to any illegalities, then if I don’t know about them I can’t get into trouble.

That has for years been the deciding principle in relation to the criminal status of company’s actions. Did the Company [its Directors] actually want the bad stuff to happen? It is not enough for the Criminal court to find that in order to achieve good stuff the Directors had closed their eyes to bad stuff.

News for you Mr Company Director. It is reported here— Link Here – in a blog from the multinational lawyers WilmerHale.

In summary, it won’t be long before individual directors are charged not with “intentionally committing crime” but with “failing to prevent crime”.  And of course, if crime happened, that there must have been a failure to prevent it nesspa?

The new burden of proof is already in force in relation to Bribery as I blogged in 2015 – Link Here –

The rising tide in the law is a drive to change where ultimate responsibility lies when crimes are committed in the name of a UK Company.

Needs a bit more thought in my view. When a subsidiary is revealed to have systematically paid bribes for contracts to benefit a UK holding company, demonstrably crime has not been prevented.

If the UK Company has 20 directors, clearly not one of them has prevented the crime that has not been prevented. So do they all go to jail, leaving no captain at work to drive the Company and save it from bankruptcy? Or is one Director more guilty than the others and if so why?

Lots of scope [money?] for lawyers to argue the ins and outs of that. Lots of scope for sleepless nights for Directors.

The lesson that I would suggest that all Company Directors should urgently take on board, is that it may not be long before the first Directors are sentenced to a jail term, for failing to [… take adequate steps …]  to prevent crimes being committed by others, perhaps by others many thousands of miles away, in the name of the Company.

In future a prosecutor may only have to prove that something illegal was happening and that the systems for which a Director is responsible were inadequate to prevent the illegality, and the judge can send the Director to jail. Say it again – Send You To Jail. I know.

So, new laws, and in consequence there will be directors in jail.

Is that a good thing? Will it change behaviours and help to push UK up the perceived Corruption list to help it catch Denmark as the country most widely considered trustworthy.

Let’s hope so

Sweet Honesty – A Song. –Link Here –

Remember, if you require our services or if you have any queries on any of the services that we offer then please so not hesitate to email us louise@atkinsonnotary.com and notary@atkinsonnotary.com.

Or alternatively please telephone on 0113 8160116 or 07715608747.  Please also feel free to visit our website www.atkinsonnotary.com


Urban Myth? Or Exploding Houses? Or Worse? The Internet Of Things. Scary Stuff.

Urban Myth? Or Exploding Houses? Or Worse? The Internet Of Things. Scary Stuff.

Does it appear to you that every new day seems to provide news of scary problems with technology?

So far as I can tell [from anecdotal evidence admittedly] the chief reason in England for the slow take-up of “smart” gadgets and particularly smart energy meters – see DT Link here –  is because folk believe rightly or perhaps rightly, that there will be no advantage for them over the traditional meter which needs to be read. Or worse, that the new kit will make mistakes.

When the new gadget is just a box linked to a telephone, who knows what information it is sending or with what accuracy?

But perhaps a better reason for a slow take-up, might be the warnings to be found everywhere you google it, that the things are easy pickings for hackers.

Exploding house anyone? –Link Here-  and – Link here –

Who is building these things anyway?

Do you suspect that the best hardware and software engineers perhaps prefer a career with Apple or Microsoft or Google, rather than British Gas?   Don’t sue me, it’s a joke.

But anyway, here’s a link to a lad of 13 who has hacked Microsoft and Google. –Link Here –  So if those two companies employ the finest minds in the World, and can get hacked, why would you fill your house with electronics that are less safe than unsafe computers? And if a 13 year old can hack in, imagine what a four year old can do.

Anyway, never mind that, this is an advisory [advisory? Is that a noun these days?] published by US certificators accredited by Homeland Security – Link Here – .

Yes, the plot of Homeland, Series One where the President’s heart pacemaker was stopped by his assassin using a mobile phone, seems to be a thing.

Happy Hallowe’en.

And as you know, our message to you is, for documents for use around the world do contact me or Louise Morley here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com



Punctuation. Potatoes. Million Pound Losses.

My Potato has 47 Bottoms today. I mean – My Father is 47 today.

So yes, punctuation.

The English language uses commas, but people who speak and write English seem to find it problematical. Doesn’t usually cost them millions, mind. But it sometimes does.

Sometime I think the correct use of punctuation is something we shy away from even when we know how to do it. There are people who don’t understand our pain in reading at the roadside “Steep Descent HGV’s Please Use Low Gear”. They say “Get a Life” if we say “HGV’s What?” – So we sometimes just wince internally.

But – Garages offering MOT’s. Shops selling DVD’s. Really?

“If you still persist in writing, “Good food at it’s best”, you deserve to be struck by lightning, hacked up on the spot and buried in an unmarked grave.”
― Lynne Truss, Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation.

Anyway, those chaps are apostrophes, back to the commas.

It’s teatime, so “Let’s Eat Mother”.

If I am correct when I write to Louise, “For Breakfast I like eggs, Louise” then presumably if I say “For breakfast I like eggs, toast and marmalade” I am writing to the toast and marmalade.

That is where the Oxford comma comes into its own, and the exception to the rule that a comma should not be written before the word “and”.

If I was in fact writing to say what I like for breakfast, I should write “For breakfast I like eggs, toast, and marmalade.”

But you knew that, of course.

In my continued quest to bring you news from years ago, here is a Canadian case – link here – where the Courts had to interpret the meaning of this clause.

“This Agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”

What then happened was that, early in the term and well within the first five years, one party served a year’s notice to terminate.

The Court found that the notice was valid to terminate the contract.

Because, there was a comma before the word “unless”. It found that the comma operated to close the part of the sentence which dealt with five-year terms. It found that the comma acted as if to put parentheses around the whole of the wording relating to five years – so that it meant “This Agreement shall be effective from the date it is made and shall continue in force (for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms) unless and until terminated by one year prior notice in writing by either party.”

It was only when the appeal court was persuaded to read the French translation of the contract also used by the issuing Company when it dealt with parties in the French language Province of Quebec, that it overturned that decision.

The French text said
“Sous réserve des dispositions relatives à la résiliation du présent contrat, ce dernier prend effet à la date de signature. Il demeure en vigueur pour une période de cinq (5) ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq (5) années, à moins d’un préavis écrit de résiliation à l’autre partie un an avant l’expiration du contrat.”

And I have put those words into Google, and it has come up with a clearer translation that the actual English words used!

Clearly, in French text, the notice must be served one year before the contract would other expire/come up for renewal. So, no notice could be effective which expired within the first five years.

And if there had been no comma in the English text contract, that is what the English text would have meant.

But there was, so it didn’t!

As I said, that case is old news, ten years in fact. So lawyers around the world have learnt from it?

Not so much, if this case – Link here – from March 2017 is any guide. It’s the Oxford comma again, or rather the lack of it.

In this case a contract made it clear – or in fact, failed to make it clear – that no overtime money would be due to drivers for their work in:-

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
“(1) Agricultural produce
“(2) Meat and fish products
“(3) Perishable foods.”

The Drivers successfully sued for overtime for time spent in distribution. That is, for the time spent in driving their Lorries. [As opposed to merely the time spent in packing for distribution. Which is, loading their Lorries.]

They were successful because there was no Oxford comma in front of the word “or”.

No overtime would have been payable, of course, if the clause had said
“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment, or distribution of:
“(1) Agricultural produce
“(2) Meat and fish products
“(3) Perishable foods.”

The cost of the missing comma is believed to be in the region of US$10 million.

Moral for Lawyers? Use lists, and where necessary the Oxford comma by all means in your legal drafting, but perhaps, if you don’t understand how they work, then don’t.

Excluding Greengrocers, obviously. You can carry on.

And truly, I did once meet a client who left me a self-addressed envelope for the return of his papers.

According to him, he lives in Leed’s.

And, turns out, he has a fruit and veg. shop.

And my Potato? That’s Spanish. The Spanish for “My father is 47 today” is apparently “Mi papá tiene 47 años hoy”

Contrast and compare – “Mi papa tiene 47 anos hoy”.

Can that be true?

Only one song will do – Link Here –

As ever, for documents for use around the world do contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com


Delegates. Usually, They Can’t Delegate. Not Always Convenient!

Delegates. Usually, They Can’t Delegate. Not Always Convenient!

As a Notary, I am consulted on a daily basis by people who have dealings in foreign countries, and wish to complete the necessary documentation here in England.

This is what I am for – to facilitate foreign dealings, by persons who cannot conveniently find the time or funds necessary to travel abroad to deal with those matters in person.

In most cases, the foreign jurisdiction issues a Power of Attorney to be signed in my presence. This is a mechanism which then enables your foreign lawyer to sign, in YOUR name, all of the foreign contracts, transfers, registrations, tax papers etc. which are necessary to achieve what you want.

So for the case of an adult person who is mentally and physically able to conduct their own business, the choice is between coming here to Leeds, and executing a Power of Attorney with me, or travelling to Spain, or Ulaanbaatar or wherever, in order to sign the papers there.

Which may take minutes, or weeks. Of your precious time.

So, the notarisation process is ideal to save time, for those who cannot travel for reasons of cost or pressure of work.

But what about those who simply cannot travel, or who could not deal with their own affairs even if they did travel? The Notary system would seem to be ideal for persons under disability. And in particular those with mental disability or legal incapacity.

Two classes of people in that category, are – first – children. They lack capacity under the Laws of England and Wales because of their minority. And second, persons who are adult but lack capacity because of mental impairment.

In the case of the adult under disability, the hope is that an Attorney has been appointed with either an Enduring or a Lasting Power of Attorney, documents which may have been executed by the Adult at a time before the loss of mental capacity.

If not, a suitable adult can apply to the “Court of Protection” – otherwise called the “Guardianship Office” Link here, – to be appointed by the Court as a Receiver or “Deputy”.

In the case of a child, a parent can often invoke the terms of The Children’s Act 1989 Link here.

So in England and Wales, there we are, an adult can represent the person who cannot represent him/herself.

So that’s that then? If someone has property abroad, and needs to sell it because the tragedy of dementia now means that there will be no more possibility to enjoy owning it, then the Attorney/Deputy of the Patient can come to see me in Leeds and sign the foreign Power of Attorney in the name of the Patient? That is what the Patient could do if they had capacity, after all.

And if some foreign Uncle or relative of a child might die and leave a Spanish mansion to his three year old nephew, then a parent can represent the child, because of The Children’s Act, s. 3, and sign the foreign Power of Attorney with me, to enable the asset to be transferred into the child’s name and then sold, Right?

Guess what? No. And No again.

The continuing Power of Attorney [whether “Lasting” or “Enduring”] or the direct appointment of a Deputy by the Guardianship office, does NOT include power for the Deputy to grant a new Power of Attorney to anyone else.

The legal reasoning is, that Fred the patient, or the Court itself, has appointed a suitable person “P” to act for Fred. The giver of the Power has thought long and hard and decided that P is the sort of reliable chap or lady who can be trusted to do the job properly and conscientiously.

They have not, in other words, given that power to P just so that P can hand over that Power to a foreign lawyer that Fred or the Court has never heard of, to sign deeds and documents for Fred abroad.

So, whilst P can travel abroad and do the foreign job, he cannot appoint a foreign lawyer as Attorney to be Fred’s representative to do the job instead.

And in the case of a parent, s3 of the Children Act does give power to a parent to represent the child in many ways, but it is limited. There is no power for the parent to sell the child’s property. So there can be no valid grant of a power of Attorney by a parent, to enable a foreign lawyer to sell a child’s inherited foreign property.

The obvious thing, is for the Attorney to go ahead and grant the foreign Power of Attorney – a pragmatic decision to do “what is best”. The chances are that if s/he does, all will be well. But the risks are that something will go wrong, and if it does, or if your child sues you later on reaching 18 years and legal majority, for selling something in 2017 which ten years later is worth ten times as much, you are very much on your own!

By which I mean – Personally liable, for taking an action which you had no right to take, however worthy your motives.

Which I think is a shame, but in these circumstances there may be no legal alternative than to make an expensive and slow Court application, for a Parent or Attorney who wants to do the right thing and do it legally.

The Law eh? No doubt from the best of intentions, the protections it provides can sometimes turn into straitjackets.

Music – link here

For advice on all of these matters and for all the more straightforward foreign dealings too, – as always – you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website www.atkinsonnotary.com


Random Musings From a Notary – Number Eleventeen

Random Musings From a Notary – Number Eleventeen.

Sadly there are plenty of blogs available for those who want to read about terrorism and elections and Brexit and the general horror that is the day to day news in 2017, and perhaps some of them even contain useful information.

So instead please consider this blog as a calm and stress free place where you and I can pass the time in quiet contemplation of one or two legal developments which may be of passing interest, but won’t raise the pulse unduly.

So, – squatters’ rights.

Here’s a case – link here – where the owner of a houseboat has claimed that he should be registered as the freehold owner of the part of the river his boat has floated above for the past more than twelve years. An important point here is that at low tide, the boat settles onto the riverbed.

In fact, the original application to the Land Registry Tribunal had been successful and this case is the actual Appeal, made by the Port of London, seeking to get their bit of riverbed – and river – back into its ownership.

Who knew? Not me anyway, that it would even be possible to obtain ownership of a bit of river by parking your boat, even after twelve years.

In this particular case however, the Port of London were able to persuade the Court that the claim should fail and the registration be rescinded.

Because, said the Court, to be a squatter successfully you must make your claim obvious. So, if I fence off your field and the only access to the now fenced area is a locked gate and I’ve got the only key, you can clearly see what I’m up to.

In the case of the boat, said the Court, the intention to claim the ownership of the riverbed was not made obvious. It just looked like a parked boat.

So, if you have a house boat, put a sign up. It might work, but only on a tidal river.

OK, so not a case of general application then. But interesting enough to mention, I hope?

Next up, in reference to my earlier Blog – link here – about the system of disclosure of criminal records, you may recall that as long as we have rules about disclosures [however “unfair” their application can sometime be] coupled with a requirement to apply Article 8 of the European Convention on Human Rights [called the right to privacy] there will be applications to the Court.

Basically the two laws are incompatible.

So in this month’s reported case of “P”– Link Here –, one of the applicants is a man who has two sexual offences recorded. They must, in accordance with the Rules, be disclosed on his Criminal Record to be given to his prospective employer when he applies, more than nine years later, for a job with children.

That’s the law.

But, the offences were committed when he was only thirteen. He was really just a child, with a child’s immaturity. His acts were, as the Court recognised and stated, acts which could in the most favourable light, be viewed as an “ordinary part of the process of growing up”.

So Article 8 – the “right to privacy” would say they should not be disclosed.

There is nothing in this case to suggest that matters have moved on a jot since the clash of laws was last brought before the Courts. The Judges are being asked to decide on individual cases, the law is therefore basically uncertain and contradictory.

As the Judge said, this latest case makes it clear, if it wasn’t before, that Parliament should understand that there is a problem with the operation of the scheme – of criminal records disclosure – and address it.

Until they do, the Courts will continue to be asked to deal with problems which are not problems they should be required to solve.

And finally, food for thought for the conveyancing lawyers reading this.

As you know, before completing the purchase of a registered house or registered land for a client, it is necessary to make final “searches of the Register”. The reason includes the fact that a search result will give a “priority period” – several days of grace during which no alternation can be made to the Register by anyone else and within which you can register the new title of your client.

This protects your client from, say, any chance that the seller may be a crook intending to take money from several “buyers” – sell his million pound house to twenty buyers all on the same day, then run away and let them chase his dust.

BUT, during the period protected, you need to get on and register your clients’ new property into their names.

The period of protection CANNOT be extended. You can make a new search, but if some other registration is pending to the title, and if the new search is made after the date of the other application then the new search will not extend your earlier search protection.

This means, there is a gap between purchase and registration, within which, if you are slow, a third party might get in to the title ahead of you. And the whole point of registration of a title is that you are not the legal owner of your new house, until the land registry says you are. By a completed registration.

Here is a report of a case where a buyer has fallen into the “registration gap”.– Link Here –

It seems to me that three firms of solicitors have between them, or each, made a mess of their tasks.

First of all a purchaser P paid for a transfer of land which should have reserved rights of way for the neighbour over a “shared” access, but did not. Then P’s solicitors messed about and did not get on with the job of registering that title, and in the meantime the sellers sold another plot to purchasers P2 and did grant them rights to use the accessway.

Then P2 got their title registered whilst P was dithering, within the Registration gap.

By the time P got their title registered, the rights of way of P2 were on their title.

I would be interested in knowing a bit more background to the case and its actual consequences. It seems to me that if P had actually been registered with a title which showed that no one else was able to share their accessway, this would have been something the Seller did not intend: it was the Seller’s mistake. It would have given P the right to claim money for granting the right of way to P2.

As it is, P finds himself unable to claim the benefit of what would have been a mistake anyway. Does he have a claim against anyone? Perhaps the registration gap has worked in an unusually benign way.

But no doubt some Solicitor will have pay compensation to some-one.

Plus ça change, plus c’est la même chose, innit.

Music – link here

And, as always, please remember whenever you have documents to Notarise to use abroad, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com


Hot News from the Bolivian Consulate. Well, Sort Of.

Hot news from the Bolivian Consulate. Well, sort of.

That’s an attention grabbing way to turn off 99% of my Blog audience I’m guessing.

Certainly most of my clientele with business in South America are dealing with Brazil or Argentina, and Bolivian requirements and practice are perhaps a somewhat niche interest in Leeds.

But of course, all the more useful, if you do have interests there, to know that there is the necessary expertise here in Leeds, at AtkinsonNotary. [As, if I may say so, there is regarding all the Countries of the World]

As to the actual hot news, to begin with, you must proceed as before. Your document – contract, deed, assignment of copyright, etc., will require stamping as previously. First with the Notarial seal, in respect of my certification that you have signed in my presence. Secondly with the British Foreign and Commonwealth Apostille stamps, whereby the British Government certify and warrant that I am a properly qualified and insured Notary Public in England. And thirdly, with the stamp of the Bolivian Consulate.

I am at a loss for an actual reason for step three, mind, but step three is nevertheless essential.

And my news relates to step three.

Because now, in order to get step three achieved, your document must be translated into Spanish. And that translation Notarised. And Legalised. And submitted for Consular stamp.

So, after the English language document is signed and notarised, the translator must make a translation into Spanish, then appear before a Notary, to make a formal declaration that they have the necessary expertise to perform translation, and that document A [the Translator’s document written in Spanish] is a true translation into the Spanish Language of document B [the attached copy of your document.]

And then, that translator’s notarised certificate must also be endorsed with the Apostille stamp of the British Foreign and Commonwealth Office, and the Bolivian Consular stamp also.

Clearly the fees involved in dealing with the translation into Spanish will likely exceed the fees for the notarisation and stamping of the original substantive document.

What to do?

First, contact me, we can arrange for the necessary translations at relative short notice, or perhaps better still, do not write your original documents in English!

The Bolivians will only insist upon the translation into Spanish, in respect of non-Spanish texts.

So if you arrange to have the terms of your Bolivian documents, once agreed, translated into Spanish before you sign them, then the documents you are submitting to the Consulate are in Spanish. And no translation palaver is required.

I think this is an example of how it can save money, if individuals and companies bear in mind the Notarisation formalities and requirements of each Country in which you are doing business, as integral to the process of document preparation.

If you – as most do – go down the route of preparing the documentation in English text for signing and witnessing by a “deadline day”, and then looking around to see what legalisation process is needed thereafter, you are pretty much guaranteeing wasted time and money.

Come see us first. And that goes for anywhere, not just Bolivia!

And, as always, you can contact me or Louise here at AtkinsonNotary E7 Joseph’s Well Leeds LS3 1AB, phone 0113 8160116 and email notary@atkinsonnotary.com or via the website http://www.atkinsonnotary.com


Marriage Broken Down. Two Years Apart. But Refused a Divorce. Really?

Marriage Broken Down. Two Years Apart. But Refused a Divorce.

This week’s newspapers and specialist legal journals are full of the defended Divorce case of Owens v Owens.

Mrs Owens want a Divorce and Mr Owens won’t agree. After two years of living apart, she has failed to get the Divorce. Link here to the Court case, the actual decision.

The case is unusual because whilst Mrs Owens wants a Divorce – and therefore – and because of her actions in moving out of the family home over two years ago, and because she is adamant that she will not live with her husband ever again, the Courts have agreed with her that “the marriage has broken down irretrievably”.

It may come as a surprise to you if you are not a lawyer, that those facts alone are not sufficient in English Law, to entitle Mrs Owens to her divorce.

Because of the present Divorce Law, dating from 1969, she ALSO has to prove at least one out of the five following alternatives –
1. That Mr Owens has committed adultery and she finds it intolerable to continue to live with him. No, He hasn’t’ [NO – she has, by the way, but he hasn’t].
2. That Mr Owens has behaved towards her in such a way that she cannot reasonably be expected to live with him
3. That Mr Owens has deserted her for more than the past two years. [NO – He Hasn’t]
4. That having lived separate for over two years, Mr Owens consents to the Divorce [NO – Mr Owens does not give his consent]
5. That the parties have lived apart for more than five years [NO – They haven’t]

So four out of five options are unavailable to her, leaving the second one as her only chance. Which is, to repeat, “that Mr Owens has behaved towards her in such a way such that she cannot reasonably be expected to live with him”.

Problem is, the worst she can say about him is – Mr Owens is a bit grumpy, perhaps a bit pedantic and set in his ways, a bit autocratic. A bit prone to complain and nag. [Remind you of your Husband at all?]

But they married in 1978 and there is no suggestion that Mr Owens has suddenly changed from Prince Charming in 1978 into a combination of Victor Meldrew and Jack Manningham in 2017.

Basically he seems to be the same person now as he was then. Bit of a difficult chap. Like so many others of us.

And significantly perhaps, she began to see a lot more of him after his retirement, than during the first thirty years or more of the marriage, when he would spend long days at his work, attending to the business of earning money.

As the trial judge noted, each example cited in her divorce petition seems to amount in itself to very little that you would not find in any marriage.

Of course if you love your annoying spouse, that’s one thing. If you stopped loving him years ago, it’s quite another, when he sends you out into the garden to put out the recycling cardboard “properly” or has a fit of the shouty strops in an airport concourse.

The papers are all over this – Boo Hoo, basically. A couple of Links here and here

The newspapers are decrying the refusal of the Judges to grant the divorce, as evidence of the “stick in the mud” nature of Judges generally, and their refusal to “move with the times”.

But contrary to this and in spite of the newspapers which seem to think that Judges can decide every case as they might think the public would prefer, in fact the Judges’ job is to implement the actual law.

Which is as stated above.

And if, as they found, Mr Owens has not as alleged begun to behave in a manner such that Mrs Owens cannot be reasonably expected to live with him but has in fact merely continued to be the same rather difficult man he was in 1978 when she married him, then alternative No. 2 does not exist either.

So end result of the recent Appeal hearing, – the marriage has broken down, but it cannot be ended for a further three years – when option number five will be available.

What do you think?

On the one hand, Mrs Owens wants a “No fault Divorce” without waiting five years from separation.

On the other hand, taken to its extreme, a Law of “No – fault Divorce any time you like” will allow a spouse to flounce off to the Divorce Courts any time they choose because “I’ve been looked at funny and it’s all over between us”.

But no-fault no-waiting Divorce would seem to be a logical progression in the way in which Divorce law has evolved in England over the past couple of hundred years. And each change in Divorce law, has been made in order to accommodate changes in Society and public opinion.

Public Opinion now might well be that one party to a marriage, if s/he is unhappy, should have the right to end it. Unilaterally, to come into the kitchen and say “By the way, We are divorcing today, so that’s that, sunshine”.

A hundred or so years ago, happiness was probably considered a most unusual bonus in the rare instances of it in marriages, and the lack of it hardly worth comment. But that was then and the past is another Country.

So what do you think?

And what do you think “Marriage” is anyway? What, these days, is it for?

I mean, if you could end it anytime, easy, just like that, then how would it differ from just living together? Should it be any different? Why have gay couples fought so long and hard to be allowed to marry?

You don’t expect answers from me though, do you! It’s complicated, like this song

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