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17 FEB 2009

Interview with Sandra Davis, Head of Mishcon de Reya's Family Department

By Hugh Logue, Legal News Editor

WED 17/02/2009 - Sandra Davis is the Head of Mishcon de Reya's Family Department, where she has been a partner for 25 years. Her work includes international and domestic 'big money' cases with a specialisation in high profile and high net worth individuals attracting media attention, international child abduction, divorce and separation, cohabitation disputes, pre-nuptial agreements and contact and residency disputes. She lives in London with her husband and their two children.

Davis is probably best known for having acted for a number of high-profile clients including the late Princess Diana, Mick Jagger's former partner Jerry Hall and, most recently she initially represented Heather Mills McCartney.

I met her at Mishcon de Reya's impressive Art Deco office building, Summit House, in central London. My immediate impression is that this is an open-minded firm. 'It is an entrepreneurial firm which is full of eclectic people and it is a firm that encourages diversity in attitude and working practices', Davis tells me. 'This is not about working 24/7 and feeling like jumping off a building at the end of the day'.

Many of Mishcon's clients attract the media spotlight, either because of their wealth or because they are public figures. I asked her how acting for a 'regular' client differs from acting for someone under the media spotlight.

'There's an added dimension when you act for someone who is in the entertainment industry or a well known public figure because you have to be aware of the part that the media will play in the rolling out of the facts. Whether you say something or nothing, it is often the case you have to make decisions about how you are going to manage the information as it comes out. Even if you have taken the strategic decision with a client not to comment, their spouse may well take a different line and the pressure on your client to try and redress the balance is enormous. We look very carefully at what is in the client's interests, and it is generally not in their interest to litigate both in the press and through the courts particularly since media interest is generally much more prolonged if there is comment than if there isn't.'

'Journalists are always trying to get information. They will often telephone to discuss an issue in family law and then move on to ask me about a specific case which they are well aware I won't comment on, but that doesn't stop them trying.'

The White case was an important case for high wealth specialists like Davis. The case involved a farming family where both partners worked hard to manage the farm and the case established the concept of the division of matrimonial assets equally. Does she feel that the previous mechanism of 'reasonable requirements' for the division of assets discriminated against women?

'The interpretation of s25 [of the Matrimonial Causes Act 1973] before White led to a glass ceiling of reasonable requirements on awards for wives of wealthy husbands and that was clearly unfair.

'The issue is whether post White and Miller the pendulum has swung too far in the other direction. The suggestion from the senior Judiciary is that in the case of the hugely wealthy it has.

'I suspect whenever pre-nups are introduced by legislation, reasonable requirements will return through the back door.

'I think that the fact that there is no discrimination of the wife as the home maker is positive, however this leads to discrimination against working wives who do it all. These women are in a less favourable position in terms of life choices, than those who have chosen to or have been asked to stay at home and look after the children. They will have to carry on working, whereas often those non-working women are not expected to return to work.'

Should there always be a right for an equal division of the assets accrued during the marriage?

'I think the short marriage cases at the wealthiest end of the scale suggest that there has been a greater increase in the investment divorcee. I don't necessarily think that it is fair to have a 50/50 split of assets accrued during such a marriage. I think that what we had historically - which was a fund to rehouse and a sum to assist them to readjust to their new circumstances - was perhaps a little fairer.'

Davis is in favour of pre-nuptial contracts becoming enforceable by statute to allow people to regulate their own affairs. But are pre-nuptial contracts only of use to wealthy individuals?

'No. They are of value to families who want to keep wealth within their family rather than risk alienating it to someone outside the family. They are also of use to people who have been divorced before and maybe want to provide for their children.'

In the recent case of MacLeod the Privy Council decided that although it was for the legislature, rather than the courts, to decide if the time had come for post-nuptial agreements to be regarded as binding under English law, there were circumstances where agreements made after marriage which provided for a future separation could be enforced by the courts. I asked if she thought there was a need for post-nuptial agreements or are they just a device to get around the fact that there is uncertainty about the enforceability of pre-nups?

'Well the door is now wide open for post-nups but not for pre-nups. In Macleod the Privy Council held that post-nups are binding even if objectively unfair but reconfirmed that pre-nups are just one of the circumstances that the court can take into account.'

When Davis qualified as a solicitor, family law was an emerging area of practice. For someone wishing to follow in her footsteps, does she think it is harder to succeed now as a family lawyer?

'I think that when I started out family law was the bottom of the pile, and I think that it was perceived to be the easy option that women moved into. Times have changed and issues have become more complex so as a result family practice is much more intellectually challenging.

'Family lawyers have become more respected and there are more specialist boutique firms. So with greater opportunities, becoming a name isn't easy.

'You have to be very focussed and very driven, I think it is a very competitive environment now. In the current economic climate people are going to look towards the professions as a safer haven than say the banking industry. There will be more competition and a commercial attitude is going to be far more valuable than just a first class degree.

'I think employers are going to look for people who have had some commercial acumen, who have done something that is creative and can stand out and who are personable.'

After being a partner for 25 years, Davis openly accepts that is not possible to square the circle of negotiating a divorce, 'a good settlement', she says, 'is one where everyone feels a bit of pain'.

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