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Family Law Blog

Comment on divorce & family law 

What if the courts have got it wrong?


I was blogging recently about collective wisdom: if it is commonly held belief then it becomes true to many people, like the myth about rights for commonlaw husbands and wives.

Another related phenomenon is the wisdom of mates down the pub. This is a phrase with a slightly male slant when what I really mean is any friends, colleagues or acquaintances of both sexes who give someone the benefit of their knowledge and experience as it relates to a specific case. It is amazing how much of an influence it can have when someone, over a pint, says: “Well I know someone who didn’t have to give his ex a penny”, or: “What you need to do is …..”

That information is taken as fact and so when we deal with clients, we have to politely unpick the truth – or lack of it – in something they have been told by a well-meaning friend.

This is never more true than when talking about settlements decided by the court. “You don’t want to stand for that, you want to appeal”, “You’re entitled to much more than that!” or “I’d get a different lawyer. You shouldn’t have to pay that much!” And people act on this advice.

Any dealings with the court can give rise to a sense of injustice, whether the encounter is criminal or civil. Divorce proceedings in particular can leave a bitter taste in the mouth for many, leading to others advising what they should do to rectify the situation when really it is a fair deal. However, there are cases when unofficial advisers might have a point and often people don’t know what to do if they think the court has got it wrong.

Judges do get it wrong or judgements can simply be out of kilter and it is worth a person taking issue with it. It may not be necessary to go to the extent of an appeal. An appeal causes costs, concern and trouble for all, so sometimes extra negotiations can succeed.

An appeal must normally be made with 14 days of the order being made and a person must decide if they wish to appeal against the order (because the court got it wrong) or have it set aside (because full information was not put before the court). It will normally be either a review of the evidence by a higher judge or a review with additional evidence.

In all cases, an individual should take advice from an experienced family lawyer to save time and money in the appeal process.

If you want to read more on this topic, check out the latest edition of our ezine newsletter.

Andrew Woolley
Divorce solicitor


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Be careful of the Greek chorus who will stand on the sidelines and often give poor advice. And judges do get it wrong - which is one of the many reasons to mediate your divorce. Why roll the dice and hope that the judge will “get it”? Get in the driver’s seat and craft an agreement with your ex. that you can both live with….

By Anju Jessani on Tuesday September 21, 2010

Here in the USA, generally speaking, counsel has ten days from the date of divorce judgment to file a Motion for Rehearing and Reconsideration and if denied an additional 30 days from that date to file a Notice of Appeal. Do American courts get it wrong? All the time, especially in cases of false allegations of child sexual abuse. Here, judges are very skiddish about making findings of fact and conclusions of law that child sex abuse allegations are false or unfounded. ...

By Dean Tong on Tuesday September 21, 2010

Touche’, Anju. Good mediators, in combination with two smart, seasoned divorced attorneys for each party, is the best combination. You never know what a court will do. Never. Good advice goes a long way and mediation clients, no matter how good the mediator, still often need to talk with other people about thier huge decisions that they are making. Like Andrew, I find neighbors and family to be poor sources of advice about what the courts may or may not do - or even what they did in a particular case. The stories get very mixed up because the systems are very complicated for most people to understand. That is why there are lawyers and that is why mediaiton makes a lot of sense to a lot of people. If each party hires an attorney as an expert legal adviser—and not necessarily a “hired gun”—that is money well spent and that is where their advice should be coming from when they work on their own settlement negotiations on their own, civilly and rationally, in mediation….

By Robin Graine on Friday September 24, 2010

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