A Profile by Byron James

Ayesha Vardag graduated with honours in law from Cambridge University in 1990 -and as a scholar in European law from the Universite Libre, Brussels in 1991, then worked on prestigious research projects in international law at the International Court of Justice in the Hague and at the IAEA (UN) in Vienna.

Ayesha qualified and worked initially as a finance solicitor at the global City law firm Linklaters (London, Moscow) and then at the New York law firm Weil, Gotshal & Manges in London.  She also trained as an advocate at the Inner Temple and was called to the Bar.

In 1999, Ayesha moved across to Matrimonial and Family law, working first on her own matters as a client at the leading Mayfair family and matrimonial law firm Sears Tooth, then being taken on as one of two solicitors working directly for the senior partner, Raymond Tooth, before leaving to lecture in family law at the 5 star law school at Queen Mary's, London.  She established Ayesha Vardag Solicitors as a specialist matrimonial and family law firm in 2005, launching with a portfolio of multimillion pound cases in its first few weeks.  She is at the forefront of the new generation of matrimonial lawyers.

Personal

So you worked at the International Court of Justice and at the IAEA; in what areas did you work there?

At the International Court of Justice I produced a legal paper dealing with the peaceful use of nuclear energy, and developed that at the IAEA particularly with regard to new Eastern European Legislation. I also helped draft the Convention on Nuclear Safety and the revised Nuclear Liability Convention, which post-Chernobyl are seen as of immense importance. The two conventions have proven immensely successful with huge global participation since and many of the provisions adopted domestically.

So from Cambridge to Brussels to The Hague, Vienna to London and Moscow? How have these international experiences impacted upon you now?

I think it helps my clients to know that I speak a variety of languages and have an awareness of, if not expertise in, of a wide range of legal jurisdictions and an understanding of different cultures. 

What has working in £the City£ taught you?

I have developed a professional attitude that is client focused, pro-active, efficient - the city demands it! Providing a cost-effective resolution for one£s client is immensely satisfying, striking a deal through hard negotiation is a rewarding exercise. 

What work were you doing at Linklaters?

Hard nosed finance! It£s long hours but intellectually very interesting. That was my motivation: the challenge of working at a world class firm like Linklaters was too exciting for a new graduate to refuse!!

You say that you trained as an £advocate£ and were called to the Bar by the Inner Temple, perhaps you could expand upon that £ why did you and how did you?

I went on the Bar Conversion course, open to those already trained as a solicitor, and I undertook pupillage at 4 New Square (Chambers of John Powell QC) specialising in Commercial Professional Negligence. I was drawn to the Bar simply because I really enjoy the litigation aspect of legal practice. It provides an intellectual challenge like no other.  

Would you advise all solicitors to do the same?

There is scope for solicitor advocates but it is limited. In general I believe it is often more cost effective to use a barrister and it provides strength-in-depth - two heads are better than one! My work with leading barristers on the cutting edge of the law has been hugely rewarding both for me and my clients.

Why did you switch to Family Law?

I would probably have continued at the Bar had it not been for my divorce. I had two small children who needed looking after and I needed to engage myself in the process of my own divorce. It was really my involvement with Nicholas Mostyn QC and Raymond Tooth (from Sears Tooth, Family Law solicitors) on my case that inspired me to take up Family Law and, indeed, led to Raymond hiring and training me.  Every cloud has a silver lining, you might say, and divorce is always a fresh start

How different are Family and Commercial? (which is more stressful??)

Family is infinitely more interesting. Being involved in the colour of people£s stories, dealing with the darkness and emotion of their lives and helping them through the most heart-rending and extreme experiences is really satisfying. Making sense of the mess, bringing order from chaos and helping them build a future is hugely rewarding. 

Have you ever been frustrated by a client who refused to take your advice?

No, all my clients follow my advice! The system can be frustrating, but I always ensure that the case makes steady headway £ and it really is worthwhile to persevere, even with an often slow justice system.

You took the decision to start lecturing, at Queen Mary. How difficult did you find it to become a lecturer? Why did you choose QMUL?  

Very enjoyable, important for immersing myself in pure family law as a course leader and really satisfying to present the law to the students in a way that they remember  - I think that it was mutually enjoyable too, the students used to say I was their most £interesting£ lecturer!  I chose QMUL because it has a 5 star law school.

What was your most memorable experience as a lawyer?

The first time I instructed Nicholas Mostyn QC on behalf of my own firm£s client. I had worked out my own strategy for the case, which he endorsed, and seeing one of the most brilliant legal minds of our time argue it in court was tremendously satisfying.

What was your worst day as a lawyer?

Probably some ghastly night in Linklaters waiting by the fax machine in the small hours, for a fax from some merchant banker, knowing that while he£ll be sitting at home, I£ll be working on the documents until daylight!

Who has been the most influential person in your life and why?

While both Nicholas Mostyn QC and Raymond Tooth have been really inspiring; I would still have to say my father, former Senator Asaf Vardag. He was a democratic politician in Pakistan and he taught me to be courageous: he saw off two assassination attempts and was imprisoned for speeches he made in favour of democracy. He was also the youngest ever Senator in Pakistan. Also, my English mother, who worked her fingers to the bone bringing me up alone and still made sure I got the best education in the land.  Courage, determination and a sense of the possible £ those are what they gave me.

What would your advice be to anyone wanting a career in law?

Study hard! Academic success really opens doors.  You need to get inside the law and really understand it.  Mini-pupillages and vacation schemes are important too, in diverse areas. The law is such a many-headed beast that you need as much experience of it as possible.  You need to choose the right area for you - you must never forget that you deserve to love your work.  

Where do you see yourself in ten years?

I hope to be the leader of my generation in family law £ the first choice for high net worth clients!  I£ve been lucky, it£s been a great start.

Family Law Related:

What is the most interesting type of case you have worked on?

Cutting edge cases are always the most interesting: I worked on K v K (Pre £ nuptial Agreements), which largely held a wife to her pre-nup. Although there is limited ability to contract outside the jurisdiction of the court, which is never just a rubber stamp, as long as the agreement is just and meets certain criteria it can be applied, and I think that more and  more people will use them.

There are quite a few arguments against pre-nups though aren£t there? Contracting while in love is a dangerous thing???

As long as there has been independent legal advice and full disclosure and the agreement allows for change, providing the opportunity for review after certain milestones, I see no problem. Of course you need careful drafting.  It is certainly a way of avoiding conflict, cost and bitterness at a later stage.

Would you agree that the current law on divorce is unsatisfactory?

There are a number of problems. The general principles of minimal distress and promoting a continuing relationship between the parties and children are undermined by the fact that allocation of blame is built into the system.  There has been social and political pressure not to make divorce £too easy£. Under the status quo one has to rely on the other party£s adultery or behaviour if one wants to start divorce without a two year wait, even if both parties agree to it. This leads to people being forced to make petty allegations like £they insulted my mother£ or £they won£t come to parties£ just to get the divorce through.  It generates ill-will.  It would be helpful if is it realised that blame is difficult to place and it is not really advantageous to do so, bearing in mind the children. There should be provision for £divorce by consent£ without having to wait for it.

What would you change, do you think the idea (if not the methods) of the Family Law Act 1996 were correct £ ie no fault divorce etc?

The downfall was simply because they complicated a good idea (no fault divorce) with the ethos of £must try to save a marriage£. Led to real problems£.

Now, would you agree that matrimonial finance really is a bit of a mess?? Why would you say that?

It is certainly somewhat unpredictable at present. There are competing principles being applied.  Rather than looking to length of the marriage, I think where there are surplus assets, we should apply the yardstick of equal division to the fruits of the marriage, or marital acquest, much as advocated by Hale LJ (as she was then) in the Court of Appeal in Foster. That would provide much greater certainty.  It is interesting to note that Baroness Hale is also on the panel for Miller v Miller, so we all hope for clarification from that decision.

Is the problem in the Matrimonial Causes Act or in the judicial activism since 2000? (White v White)

Judicial discretion is in the nature of family law: the facts are unique, judges need to decide cases on an individual basis. The Matrimonial Causes Act allows for this discretion but provides factors to guide its exercise. To what extent is tighter legislation required? Well, uncertainty breeds more litigation and makes it harder to strike a deal, which is bad for the parties.

What do you make of, in White v White, the fact that the 1 million in dispute was eventually almost entirely eaten up by legal fees?

Shocking. But White v White was very important. It introduced the analysis of a marriage as a real partnership of equals, contributing equally even if through different and complementary roles; breadwinner, homemaker, etc, both part of a team.  

Returning therefore to the FLA 1996, is it not the case that as soon as the majority of families enter court there really isn£t a winner£.(unless they are super rich!)

That is broadly right, although bear in mind if there is a situation where someone really isn£t getting a fair deal, going to court is a necessity. Of course it is more worthwhile at the higher end of the wealth spectrum - the cost-benefit analysis can often prove it a risk worth taking if there are millions in dispute.

The most high profile cases, Parlour v Parlour, Miller v Miller etc are only really relevant to those in the very top earning bracket £ is there anything that the majority of people, getting divorced, with limited assets, can really learn from these cases? After all most people do not own enough assets for there to be £equal division£!

Miller v Miller has made conduct more important in shorter marriages, as a £shield£ against reducing a party£s share.  But yes, though the principles are the same in all cases, a lot of them only kick in when there is more than enough money to go round.  Needs, especially those of  anyone caring for children, are always going to trump considerations of equality.

What£s your opinion on Miller v Miller? How would you decide the case?

Mr Justice Singer may have been generous in his use of his discretion: the wife was awarded the house (worth 2.3 million) where she already lived and given a 2.7 million fund to keep her in something approaching the style to which she had become accustomed. This should be seen however in the context of her husband being worth perhaps 30 million and of him buying a new house for him and his new wife, worth 6.5 million, round the corner.  There is no doubt that the newspapers£ coverage was sensationalist; unnecessarily so. The money Mrs Miller received must be seen in the context of the proportion of her husband£s wealth and her reasonable expectations.

Do you think that section 25 is adequate?

The legislation (MCA) is quite old, it£s been in operation since the early 70s.  In that sense it has relied a great deal on case law to develop it and bring it forward. The judiciary's role is very important - I have already said how important judicial discretion is in this area.  Once the current spate of high profile cases (such as Miller) has passed perhaps it will be time for the Law Commission to consider the position.

Do you think the law needs reforming? What would you suggest??

When there is more money than the parties need, and you have to deal with the surplus, the importance of the marital acquest should be given more prominence. By this I mean a scheme along the Foster line (referred to above) where pre-owned assets (such as inheritance or savings) are returned to the parties and what was earned during the marriage is split broadly 50/50. This allows for fairness based on the marriage as a partnership and avoids the pitfalls of differing approaches based on the length of the marriage.

Now, where do you stand on the law for cohabitees?

While the courts can share out married couples finances in a way they see if fair, their hands are tied for those who live together without marriage.  A woman can live with a man for 30 years, sacrificing her prospects, bringing up their children, and at the end of it he can throw her out on the street without a penny.  Unless she jointly owns the house or can show an interest under a trust (which can be very difficult), there is nothing the courts can do.  Recent cases have tried to apply fairness once that property interest is established, but the difficulty is getting past that hurdle.  There is more you can do if there are children, but it' still limited.

There are obstacles to treating cohabitation as a special regime akin to marriage: old fashioned, marriage centric (conservative) views, the difficulty in determining when a cohabitation is significant enough to count (as people can be in and out of cohabitation, with differing levels of commitment). But it is possible to get around these problems: prior periods of cohabitation can be taken into account now in assessing length of a marriage, so that surely opens the door. Criteria could be set out to allow for a first instance decision of fact as to whether or not there has been cohabitation which should qualify.  There has to be a safety-net for the vulnerable, and a recognition of the realities of our society, in which some of the most committed families may now remain unmarried.  Inevitably, cohabitation claims are on the increase, and the law will have to adapt.