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Last updateTue, 24 Feb 2015 5pm

Paris Smith LLP

Paris Smith LLP

Danielle Taylor considers the arguments for and against making civil partnership available to opposite-sex couples

Since 2004 civil partnerships have been available to same-sex couples as a result of the Civil Partnership Act 2004 (CPA 2004), which was originally introduced in order to provide same-sex couples with the means by which their relationship could be legally recognised, and to enable them to have the same financial rights and recognition as a married couple. It was a compromise introduced on the basis that it was felt that legislation introducing same-sex marriages would not be passed based on views held at the time. Subsequently the Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013) provided same-sex couples with the opportunity to enter into a marriage (or convert their civil partnership into a marriage) should they wish. CPA 2004 was not repealed and this created a situation where same-sex couples had two options available to them in order to legally formalise their relationship: civil partnership or marriage. A bar in the legislation at s3(1)(a), CPA 2004 prevents opposite-sex couples from entering into a civil partnership and means that, in contrast, opposite-sex couples only have one option available to them, ie marriage.

Peter Kershaw makes a plea for stakeholders to respond to the latest government consultations around increasing housing supply and improving planning performance

Written by Noel Gallagher and sung by Oasis, the lyrics from the hit Fade Away have been listened to by millions who grew up in the ‘90s. Previously described by Noel in Melody Maker magazine as a song ‘about growing up, but at the same time not growing old’, his lyrics for me have come to reflect the current sombre inevitability of life for people of all ages in England who find themselves unable to grow up as they wish, and unable to grow old as they wish, while desperately stuck on the peripheral margins of today’s housing sale and rental market unable to secure a suitable home to move into.

Eugenie Taylor looks at whether it is possible to exonerate a party from their duty of disclosure

In Roocroft v Ball [2016], the Court of Appeal allowed an appeal against an order summarily dismissing the appellant’s application to set aside a consent order made in financial remedy proceedings. The application was made on the grounds of non-disclosure. The respondent was the sister of the deceased, and represented the estate at the appeal hearing.

Peter Kershaw identifies the key areas for public sector collaboration in maximising development and land disposal opportunities

Independent estimates indicate that the public sector may hold around c40% of all developable sites in the UK and around c27% of all brownfield land suitable for housing. In medium-sized county towns, local mapping data also indicates that anywhere from c50% to c70% of some high streets could be owned by the public sector.

Sarah Passemard looks at the development of case law on add-backs based on financial conduct

One website described the decision in Rapp v Sarre [2016] as ‘Court upholds addictive behaviour as a reason for unequal divorce settlement’. Divorcing couples around the country started considering their spouse’s addiction to Manchester United or The X Factor, and wondering if they could run the same argument.

Peter Kershaw pinpoints the arrival of a new era for major development opportunities

A key point I often find myself stressing in discussions with anybody considering investing time and money in developing land or property is that:

Peter Kershaw examines the continued devolution of planning powers

On 17 November 2015 Greg Clark, the Secretary of State for Communities and Local Government, confirmed in a written statement to the House of Commons that the government had reached landmark devolution agreements with local authorities in the Liverpool City Region and in the West Midlands.

Lisa Bray summarises the current case law on joint lives periodical payments orders and considers whether there is an increasing trend towards term orders

Section 25A of the Matrimonial Causes Act 1973 (MCA 1973) obliges the court, when exercising its power to make a periodical payments order in favour of a spouse, to:

Daniel Sanders weighs up the factors to be taken into account on an application for change of a child’s name

There is a growing trend for separated parents to consider a change of surname where children remain in the care of a parent post-separation who goes on to have further children who carry a different surname to their half-siblings. It is a common conception, and sometimes misconception, that the court’s approach on an application to change a surname will be to join or merge ‘old’ and ‘new’ surnames by way of a double-barrel, but this approach is not a default position. It is however an approach often accepted as a compromise or middle ground between ‘old’ and ‘new’ surnames in cases where there are no clear welfare disadvantages to the child in making the change. If there is no welfare disadvantage then there is an implicit welfare advantage to be derived from the change, taking into consideration the court’s power under the no order principle. Double-barrelling is sometimes the right way to approach the child’s identity using both birth parents’ surnames. Some parents accept the idea of a double-barrelled surname (but sometimes dispute which surname should come first), whereas others object to this style.

Frank Prior considers whether Part III of the Matrimonial and Family Proceedings Act 1984 remains a relevant option

I suspect I will find you shivering with cold and peering out on a grey wintry landscape, so let me take you to the Spanish coastal town of Benidorm where we will meet the stars of our piece. The dramatis personae will need names so let’s call them, say, Mel and Madge.

Huw Miles looks at issues arising and procedure when a client may lack capacity to conduct financial proceedings

Liberty is a fundamental human right. As a concept it includes free will, the ability to think for oneself and make decisions accordingly, and to act upon them within the limits of the law. Unsurprisingly, we presume that any person over the age of 18 is able to make their own decision on any issue. We are cautious not to override the autonomy of the individual, save in exceptional circumstances.

Helen Cort outlines the steps that may be taken to enforce child arrangements orders and provides practical tips on the drafting of such orders

The breakdown of relationships between married and unmarried couples with children is far from unusual, but, fortunately, many separated parents are able to agree the future arrangements for their children. There is a recognition that the children are likely to benefit from regular time with each parent, with an absence of parental conflict. While the parents’ personal relationship may have ended, the family relationship continues, albeit in a different form. A research study, Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth (Fortin, Hunt and Scanlan, 2012), funded by the Nuffield Foundation, found that children had positive experiences where there was a cocktail of often interlinked factors, including where:

Helen Cort highlights changes introduced by the Child Arrangements Programme and the likely impact on both practitioners and parties

Child arrangements orders were brought into force on 22 April 2014 by the Children and Families Act 2014 (CFA 2014). There is a hope that the new terminology will dispel the perception of ‘winners’ and ‘losers’ that some parties had previously attached to the old concepts of residence and contact orders. While the change is not to be decried, it remains to be seen whether this will filter down to the public, and whether the changes have any impact on the family court’s approach when determining children’s matters.

Peter Taylor and Anna Robinson urge a fresh look at mediation

Mediation is one of the key forums for resolution of disputes (big and small). A greater emphasis is now placed on the key aspects of mediation including its timing, the nominated mediators, preparation for the mediation, who attends, conduct of the opening sessions and of course (as if it needed to be said…) managing the client’s expectations. Whilst every lawyer now has to consider mediation – hopefully from the outset of the case – the concept of mediation for a client who rarely, if ever, finds themselves involved in court proceedings is a different prospect altogether. Even if a client comes to the process, having been involved in court proceedings, quite a few will see it as no more than an early and informal evaluation of the merits of the case by a neutral professional. Others see it as time and money spent which will be fruitless. And of course a range of, often, incomplete opinions based on the ubiquitous Google search.

Huw Miles looks at the finality of orders and why and how financial orders may be varied

When a court makes a financial order, it must surely be a fundamental principle of law that the order is, so far as possible, final. If we can’t have certainty in a discretionary system, at least let’s have finality. Only a small category of orders are capable of variation. In a specific divorce, the court may only make one order for lump sum or property adjustment provision. A specific pension may only be shared once. Further applications for periodical payments may be prohibited. Permission to appeal is harder to obtain than ever. We just don’t need long dead claims coming back to life.

Helen Cort examines the evolution of nominal periodical payments orders in favour of the primary carer and the potential impact of the Court of Appeal decision in Matthews v Matthews

How often, as family law practitioners, do we accept that there should be a periodical payments order in favour of the primary carer where there are minor children? While this may often be the appropriate outcome, there may be a danger that practitioners simply accept this rather than carefully analysing the specific merits of each case, particularly in terms of income and the effect the children have had on the applicant’s earning capacity. Nominal orders in such cases became a convention, but what was the basis for it?

Huw Miles analyses issues of evidence regarding complex trust and corporate entities as highlighted in the decision of CR v MZ

The decision of Jonathan Cohen QC, sitting as a deputy High Court judge, in CR v MZ [2013] is arguably more remarkable for the litigation (and other) conduct of the parties, rather than for the clarification of any legal principle but there are perhaps other lessons to be learned. The judge was moved to make a number of critical comments, especially of the husband and his father, who was also a party to the case, describing the husband as ‘long winded’, ‘dogmatic’, ‘combative’, ‘deflective’ and ‘vague’. Crucial documents were described as ‘shams’, created to give ‘a false picture and to mislead the court and/or the wife’.

Helen Cort examines the nature of without prejudice communications, competing public interests and privilege in ADR

Family lawyers will be familiar with without prejudice communications, but how often is a query raised as to whether such communications should properly attract privilege? With the withdrawal of public funding from most private family law matters from April 2013 and the government’s push for parties to engage in forms of alternative dispute resolution (ADR) as opposed to court-based litigation, it is becoming increasingly important for practitioners to fully comprehend the application of privilege in processes outside of traditional solicitor-led negotiation.

Frank Prior and Victoria Ferguson examine the limited, and sometimes unique, circumstances in which an interim property order may be made

Every day court lists groan under the weight of litigants, and with even more litigants in person expected after changes to legal aid in April 2013, the demand for judicial time can only increase. To cite the Law Society’s response to the Family Justice Review: ‘The family justice system is failing families; notwithstanding the expertise and dedication of those working within it’. The resulting delay in court proceedings, combined with the growing financial pressure on households, serves as a useful backdrop to review the limited circumstances in which the court may make an interim order for the sale of property prior to the final hearing of an application for a financial order pursuant to the Matrimonial Causes Act 1973 (MCA 1973).

Daniel Sanders suggests ways in which family lawyers can assist the court with effective case management

Legal life is about to become more complicated – just as we are getting used to the Family Procedure Rules 2010 (FPR 2010), a reorganisation of legal aid will take place in 2013 and the proposals set out in the Family Justice Review will be agents of change.

In the conclusion to a two-part analysis Huw Miles looks at the courts’ approach to compensation

In this article we will consider case law that followed the decision in Charman v Charman [2007] and summarise the issues arising from the various cases in which compensation has been considered and the principles that can be drawn from them as to the courts’ approach.

In the first of a two-part analysis Huw Miles looks at the courts’ approach to compensation

What does ‘compensation’ mean? The Oxford Dictionary suggests it means: ‘Something, typically money, awarded to someone in recognition of loss, suffering or injury.’ Roget’s Thesaurus provides many synonyms, including: ‘advantage’, ‘bonuses, ‘premium’, and ‘reprisal’ among many others. Typing ‘compensation’ into Google gives 235 million results. While not having carried out a complete check, the first 50 pages are largely promises of financial reward on a ‘no win no fee’ basis.

Rachel Osgood looks at the impact of MK v CK on the guidelines in Payne v Payne on leave to remove

If you asked a family lawyer in recent years about the law in relation to international relocation the reply would have been that if the primary carer was genuinely motivated, and if their plans were reasonable, then it was almost certain that they would be granted permission to emigrate with the child. If you were acting for the applicant you would no doubt establish that the effect of a refusal of permission on them would be devastating. You would then issue an application, confident that you would be likely to succeed, almost regardless of the other parent.

Helen Cort examines how the concepts of parental responsibility and shared residence orders are being applied to increasingly diverse family units

With the increasing use of artificial insemination and surrogacy, the ‘traditional’ family unit with a biological mother and father is changing and the courts are asked with increasing frequency to determine applications by same-sex couples and consider the status of biological and non-biological parents. How important is the biological relationship between a parent and a child? Can a biological parent ever be displaced in favour of a parent who has no blood relationship to the child in question?

Sarah Passemard and Helen Cort examine the Court of Appeal’s decision in Re F (Children: Internal Relocation) [2010] and consider whether it marks a change in the court’s approach to internal relocation cases

In an ever more mobile society, family law practitioners are increasingly faced with cases where the issue is whether children should move to a new location. This is true not only of cases where it is being proposed that the children should move abroad, but whether children be allowed to move within the jurisdiction.