Jane from London writes:
My husband and I are still reeling from news we have received from our daughter. She recently obtained her decree nisi of divorce from her husband on the grounds of his unreasonable behaviour, which has persisted throughout a long marriage.
A fortnight ago she attended the roundtable “without prejudice” meeting with her ex and their respective solicitors, in the hope of negotiating an amicable settlement concerning the property dispute and the children.
To her horror, her ex threw an envelope of photographs onto the table in the middle of the meeting, and said: “If you do not drop all claims to child support, I will send these to your boyfriend’s wife!”
When she looked at them, they showed her in somewhat compromising circumstances on a beach in Mauritius this summer, where she had gone on a short holiday with a gentleman with whom she has maintained a friendship since the effective breakdown of her marriage.
She believes they were followed there by a private detective. Until that moment she did not realise that her ex knew about the affair.
With that bombshell the meeting broke up, and everyone has gone away to think about it. She says her husband’s solicitor just sat there smirking as though this were the most natural thing in the world, while her own solicitor reacted (and continues to react) in a lame way.
He says there is little to be done as the meeting was without prejudice. Her gentleman friend is very upset and thinks he probably has no choice now but to confess the affair to his wife, who happens to be an extremely sick woman.
My daughter is in her late thirties and has three children under 18. She is a successful professional, and is as successful financially as her ex-husband. My husband and I are getting elderly, and in time there will be a considerable inheritance for my daughter and the children. I think this is making him jealous. It seems incredible that my daughter is not being advised by her solicitor to go on the warpath now. Am I right?
Jane, I am hiding your identity even more heavily than usual, because no lawyer relishes criticising colleagues, especially when he may not know the full facts. Nonetheless I find the advice your daughter has so far received to be strange, just as you do.
Firstly, there can be no “without prejudice” cover in such discussions when they relate to children. Next, child support cannot be ousted. Any agreement to oust the Child Support Agency is unenforceable.
Lastly, there can never be without prejudice cover when criminal threats are made, and it seems to me this conduct amounts to criminal blackmail. She could report it to the police as such. Needless to say your daughter will need to think long and hard before she chooses that course. He is still the father of her children.
No less worrying however is this aspect: I think prima facie the solicitor for her ex could be guilty of professional impropriety.
He is probably a member of the organisation Resolution, as most family practitioners are, and if he knew beforehand that something like this was going to happen, he could be expelled from the organisation for breaching their code of practice. This demands a non-confrontational and constructive approach in family cases.
There could also be a complaint to the Law Society. If he did not know about it in advance, one would expect him to rush now to dissociate himself, and even to refuse to act further for his client.
Nor does your daughter’s solicitor seem to have covered himself in glory. The sin here seems to be ineffectiveness. There is plenty to be done by way of protest at this unacceptable threat. The first thing may be a detailed open letter setting out the exact history of the meeting, and asking if his solicitor was complicit. Your daughter should certainly consider changing to new solicitors for this purpose.
I would add this finally. Her affair is of no possible relevance to the settlement, as her friend is still married, and I infer from what you write that they do not cohabit, and he does not support her financially. It could only make a difference if this were otherwise. Likewise such wealth as she or the children may one day inherit from you can be disregarded, because it is both too remote, and acquired after the divorce.
The above is not formal legal advice and is given without liability. Jonathan Goldberg QC is a leading London barrister. Visit www.GoldbergQC.com
