Last updateTue, 24 Feb 2015 5pm

Rayden Solicitors

Rayden Solicitors

Priya Palanivel and Shantel Burbridge examine the Court of Appeal’s decision in Sharp v Sharp, and the potential impact on the approach to short marriages

The duration of marriage has always been one of the more controversial factors under s25, Matrimonial Causes Act 1973 (MCA 1973) when it comes to determining how assets should be divided on divorce. Many would agree that fairness dictates there should be a distinction between how assets are divided in short, medium and long-term marriages. As such, it is not surprising that the decision in Sharp v Sharp [2017] has been widely reported in the media. This article considers the approach that has historically been taken by the courts in relation to the division of assets in short marriages, and the outcome in Sharp.

Lehna Hewitt reviews cases where a special contribution argument has been successful, and the outcome in Work v Gray

It is possible to depart from equality in the division of matrimonial assets on divorce where one party can demonstrate that they have made a special contribution to the marriage. Section 25(2)(f), Matrimonial Causes Act 1973 requires the court to have regard to the contribution that each party has made, or is likely to make in the foreseeable future, to the welfare of the family. A special contribution is usually argued where one party has earned and amassed exceptional wealth by their acumen and drive, which they say is unmatched by the contributions made to the welfare of the family by the other party. If successfully argued, this will impact on the division of the assets and result in a departure from equality in that party’s favour. In practice, these cases are extremely rare. There are just a handful of reported cases where a special contribution has been successfully argued. Further, the courts have shied away from any prescriptive rules and, as is so often the case in family law, this area of law has been subject to a huge amount of judicial discretion. There is no definition of a special contribution in statute, and arguably no clear definition in case law.

Jennifer Moore provides a reminder of the requirements for prohibited steps and specific issue orders and an update on recent case law

There have been a number of cases recently that have considered the approach to be taken on an application for a specific issue or prohibited steps order, but first this article will revisit the remit of these broad-reaching orders and how they may be used in a variety of situations and scenarios. It is important to remember that such orders are useful tools for practitioners, and not just methods to prevent a parent removing a child from their existing place of residence or to seek permission to remove a child from their existing place of residence.

Nicola Meldrum provides guidance on the drafting of cohabitation agreements and the enforceability of such agreements

Although marriages remain the most common type of family unit in the UK, cohabiting couples were the fastest growing family type over the last 20 years. According to the Office for National Statistics, between 1996 and 2016 cohabiting families more than doubled from 1.5 million to 3.3 million, and it is presumed that this does not include the less usual arrangements whereby a group of people pool their finances to get on the property ladder.

Che Meakins assesses the difference between costs already incurred and those required to fund future litigation on an application for a legal services payment order

In BC v DE [2016], the applicant mother made an application for the respondent father to pay her outstanding and prospective legal costs, neither of which were considered disproportionate or unreasonable at the preliminary hearings. The issues before the court were whether a claim for historic costs could be made on an application for a legal services payment order (LSPO), such order by its nature being considered where there are prospective costs rather than retrospective, and further whether the applicant’s application was in effect being utilised as a method of circumventing the rules under Pt 44, Civil Procedure Rules 1998 concerning cost awards.

Nicola Caffery analyses the evidence required for a non-molestation or occupation order, and guidance on the duration of such orders

The decision in PF v CF [2016] concerned an application by a husband for permission to appeal non-molestation and occupation orders and includes an interesting discussion as to the relevant law. An occupation order (which more often than not goes hand in hand with its non-molestation sibling) remains arguably the most draconian order available to the family courts. To override proprietary rights and exclude a person from their home on the civil standard of balance of probabilities can be punitive and harsh, particularly if the order is made on a without notice (ex parte) basis. The judgment in PF v CF sets out the relevant law to be considered, and examines the issues facing judges at first instance.

Emily Watson analyses recent case law developments on deferring the decree absolute

This article looks at the High Court decision in Thakkar v Thakkar [2016], and the guidance provided as to the grounds on which it is possible to successfully apply to defer the grant of decree absolute. Most practitioners will be aware that it is difficult to prevent a decree absolute from being granted, even if your client is likely to suffer a financial disadvantage, yet given the average timeframes for both divorce and financial proceedings, this can potentially be an issue in the majority of our cases. So what is the law and how does Thakkar contribute to our understanding of the position?

Rachel Nicholl revisits the impact of Vince v Wyatt and guidance on applications to strike out in family proceedings

An application to strike out a statement of case remains rare in family proceedings. Such applications are far more common and widely used in civil cases under the Civil Procedure Rules 1998 (CPR 1998). The family courts have the power to strike out a statement of case pursuant to r4.4, Family Procedure Rules 2010 (FPR 2010). When the FPR 2010 came into force on 6 April 2011, this was just one of the new case management powers adopted from the CPR 1998. This article will address the key provisions of the FPR 2010 as to strike out applications, what to consider when making an application under r4.4, FPR 2010, and case law examples of how the family courts have approached their powers of strike out.

Paula Butterworth and Sohinni Sanghvi provide an overview of the court’s powers to make financial orders and the significance of the timing of the decree nisi

The courts have the power under the Matrimonial Causes Act 1973 (MCA 1973) to make financial provision for a spouse or any children of the family on the breakdown of the relationship between married parties. The opening words of s23, MCA 1973 provide that orders for financial relief may only be made on the granting of a decree of divorce, nullity or judicial separation or at any time thereafter. In this article we will review the recent decision in K v K (Financial Remedy Final Order prior to Decree Nisi) [2016], the central feature of this case being whether a financial order made before decree nisi can be remedied by a later order, and what steps practitioners can take to ensure the correct drafting of orders in such circumstances.

Lehna Hewitt considers when information from financial remedy proceedings can be disclosed in related legal proceedings

Where criminal proceedings arise in relation to a child, in addition to care proceedings, it is recognised by both the family and criminal justice systems that the children involved and their families need consistent treatment. There is therefore a detailed and comprehensive Crown Prosecution Service (CPS) protocol dealing with the disclosure of information from family law proceedings involving children in related criminal proceedings (see The position in relation to financial remedy proceedings is different however, and this article aims to provide a brief overview of how the courts deal with issues of cross-disclosure in financial remedy proceedings and the development of the case law in this area.

Che Meakins reports on the courts’ discretion when considering the parties’ circumstances as a whole, and the importance of understanding the intention behind an order

In Mutch v Mutch [2016] the court was concerned with an appeal by the wife against the setting aside of an order that extended the term of her spousal maintenance. The Court of Appeal’s decision serves as a reminder that:

Jennifer Moore examines the approach of the courts on an application to relocate a child, and the factors that will be taken into account

Case law sets out the principles that the court must now apply in determining both internal and external relocation cases, and the Court of Appeal was clear in Re C (Internal Relocation) [2015] that there is no distinction between an application to relocate a child within the jurisdiction, and an application to relocate a child to another country. This article will summarise the principles to be applied by the courts, the questions the court will ask in undertaking a welfare enquiry, and what the most important question for the court is likely to be.

Emily Watson considers a recent decision on jurisdiction between EU member states involving issues of lis pendens

The decision of Moylan J in E v E [2015] was primarily concerned with a jurisdiction dispute between England and France and the application of Art 19 of Reg (EC) 2201/2003 (Brussels II bis) as to competing proceedings, as well as a subsidiary issue concerning service.

In the conclusion to a two-part analysis, Julian Bremner looks at criticisms of costs, unbundled services and weaknesses in the judicial system

Part one of this consideration of current concerns within the family justice system looked at changes to court administration and the issue of proceedings, together with the impact of increased numbers of litigants in person and the difficulties of advising such parties when a final order has already been made. This second part will look at the different ways in which costs are being approached and how judicial allocation may impact on the outcome of a case.

In the first of a two-part analysis, Julian Bremner suggests that current pressures on the courts, family lawyers and the parties are damaging the justice system

Recently I caught up with a colleague at a drinks party who said to me, ‘I just don’t know how to advise clients anymore, everything is now inconsistent, decisions patchy, and dealing with the court and its administration is a complete nightmare’. I commiserated with him, traded stories about the parlous state of family law on a practical level and then we talked about other things, but the conversation made me think about changes that have taken place in family law over the last two to three years and the significant impact that has had on practice, client service and the predictability of the outcome of family cases.

Rachel Willmott considers the remedies available to cohabitants as to the transfer of a tenancy and the consequences of provision for liberty to apply

The decision in Guerroudj v Rymarczyk [2015] addressed the law in relation to a former cohabiting couple who were living in local authority housing under a secure tenancy. The tenancy was in their joint names and the question was who, on separation, the tenancy should be transferred to. The appellant was represented throughout the proceedings in contrast to the respondent who, for the majority of the proceedings, acted as a litigant in person, albeit she had support from a McKenzie friend.

Kate Elliott analyses when an undertaking may be varied and the importance of finality in financial orders

In Birch v Birch [2015] the Court of Appeal dismissed a wife’s second appeal against a refusal to vary an undertaking in a consent order. The case was concerned with a consent order entered into by the parties on 26 July 2010. The order followed a structure that will be familiar to many practitioners, which was as follows:

Lehna Hewitt reviews the courts’ approach to cases where an order may be made on the basis of assets owned by a third party

The recent Court of Appeal judgment in Gadhavi v Gadhavi [2015] considered the limits of the court’s powers of ‘judicious encouragement’ against family members or other third parties in financial remedy proceedings, and the distinction between the fiduciary obligations of a trustee to a beneficiary and the relationship between a donor and a donee.

Che Meakins suggests that when dealing with a limited-means Schedule 1 claim, particular care should be taken to quantify means and needs

The number of unmarried cohabiting couples with dependent children is consistently on the rise in the UK. In Re P (A Child) [2003], the growing percentage of children born out of wedlock was commented on, with an estimated two in five children potentially falling within the Schedule 1 regime at that time. Data released by the Office for National Statistics earlier this year (see revealed that in 2004 11% of children lived in opposite sex cohabiting couple families and this had risen to 14% by 2014.

Rebecca Harling considers the impact of the legal aid cuts, in particular on domestic abuse cases

In an attempt to cut the legal aid bill by £270m, the government withdrew funding for numerous categories of civil law when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) came into force on 1 April 2013, affecting as many as 600,000 people. LASPOA 2012 established a new regime for legal aid, restricting public funding to those in greatest need. The most deserving end of this spectrum was determined to be cases where the individual’s life or liberty is at stake, they are at risk of serious physical harm or they face state intervention in their family affairs which could result in their children being removed. As a result of this, since 1 April 2013, public funding is now only available in a limited range of family law cases (see 'When is legal aid still available?' below).

Paula Butterworth considers the issues arising in Mann as to agreements to mediation and when an order may be varied

Mann v Mann [2014] was concerned with an appeal in financial remedy proceedings. The Court of Appeal was concerned with both the jurisdictional and procedural issues of making orders following the discharge of a previous order for periodical payments by capitalisation, when that consequent order for a lump sum had not been satisfied and enforcement proceedings were pending. The earlier hearings had been dominated by the parties’ agreement to mediate and the court’s attempts to encourage them to continue down that path.

In the conclusion to a two-part analysis Julian Bremner suggests a cautious approach to new client enquiries with a focus on risk management

The first part of this article ('A cautionary tale', FLJ142) set out the background and decision in Padden v Bevan Ashford Solicitors [2011] (and the subsequent judgment in 2013). This concluding part will look at the consequences of the decisions for family lawyers and practice points to minimise risk, together with wider issues of professional standards and negligence.

In the first of a two-part analysis Julian Bremner highlights the potential pitfalls of offering free-of-charge interviews and failing to fully explore a client’s options

The family law market is increasingly challenging. The need to be competitive has never been greater, and family lawyers have had to become more flexible regarding methods of bringing in new business and methods of charging, eg:

Rachel Wilmott highlights the courts’ approach when dealing with financial conduct and litigation conduct

The decision in US v SR [2014] addresses at length the law on notional reattribution and the burden of proof regarding non-disclosure of assets. Much of the judgment is fact-specific however it serves as a useful reminder of the applicable principles regarding allegations of financial misconduct and the rules of evidence on the drawing of adverse inferences.

Che Meakins sets out the courts’ approach to children’s evidence and when a child should be joined as a party to proceedings

In June 2014 the president of the Family Division, Sir James Munby, announced the establishment of the new Children and Vulnerable Witnesses Working Group (CVWWG). Part of the CVWWG’s job is to review the Family Justice Council’s Working Parties’ December 2011 guidelines on children giving evidence in family proceedings (the 2011 guidelines). The CVWWG delivered its interim report in August 2014.

Paula Butterworth summarises two procedures designed to accelerate and simplify financial remedy proceedings

The reforms to the family justice system in 2014 have so far primarily impacted on children proceedings but there have also been changes to financial proceedings. Of particular note are changes to accelerate certain financial cases, and this article will look at both a pilot scheme in London and the widening of the application of the accelerated/shortened financial remedy procedure by amendments to the Family Procedure Rules 2010 (FPR 2010).

Kate Elliott reports on the interplay between the validity of a divorce, jurisdiction, and interim orders for maintenance and costs

The decision in MET v HAT [2013] raises interesting issues as to the courts’ approach to non-proceedings overseas divorce and the impact of a non-proceedings divorce on a claim for financial provision after overseas divorce. The case also raises the issue of a potential lacuna in the law.

Rebecca Harling reports on the often vexing issue of the ownership of pets on relationship breakdown and the courts’ approach

A recent survey by the charity Dogs Trust highlighted that a fifth of separating couples found deciding who should keep the family pet as stressful as deciding where and with whom the children should live. Some couples have turned to mediation to reach an agreement about this issue. Pet owners are often very attached to their animals, who, in many cases, take on an almost childlike role within the family unit.

Emily Watson contemplates the courts’ power to limit the future exercise of parental responsibility

The recent decision in EG v JG [2013] dealt with a specific issue application in relation to the education of four children. Although a County Court decision, HHJ Million dealt with various issues that are worth a closer look, in particular the emphasis to be placed on a child’s wishes and feelings and the approach to be taken when considering conflicting belief systems of the parents.

In the conclusion to a two-part analysis Che Meakins looks at Xydhias agreements and the procedure to be adopted on a notice to show cause

The first part of this consideration of different types of agreements between parties in family proceedings ('Final word', FLJ131) considered case law on the weight to be given to such agreements in financial remedy proceedings agreements, the tension with the court’s duties to deal with cases justly under the r1.1 Family Procedure Rules 2010 (FPR 2010) and the discretionary obligations of the court under s25 Matrimonial Causes Act 1973 (MCA 1973). This concluding part will outline the courts’ approach to Xydhias agreements and the opportunity for a pre-proceedings agreement to give rise to a preliminary hearing outside of the normal financial remedy procedure (ie a notice to show cause).

In the first of a two-part analysis Che Meakins discusses different types of agreements between parties in family proceedings and their impact

The rise of alternative dispute resolution methods may make the likelihood of financial settlements reached outside court more likely and increases the duty on practitioners, when fair and appropriate, to seek to formalise such agreements by way of judicial approval. The importance of this was reiterated recently by Thorpe LJ in Vince v Wyatt [2013]:

Kate Elliott discusses the decision in Re A and the implications of protracted proceedings in intractable contact disputes

In Re A (a child) (intractable contact proceedings: human rights violations) [2013], the Court of Appeal was concerned with a father’s appeal against an order for no direct contact on the basis that the court at first instance:

Paula Butterworth analyses the impact of the Supreme Court decision Prest in a cohabitant case

The Court of Appeal decision in Smith v Bottomley [2013] concerned proceedings under the Trusts of Land and Appointment of Trustees Act 1996 between former cohabitants and related to three properties registered in the name of the husband’s company and one property that had been owned in joint names but since sold and the profit divided.

Rebecca Harling analyses a rare application to terminate a father’s parental responsibility

In CW v SG [2013] the court was concerned with a mother’s application to terminate a father’s parental responsibility for their eight year-old son and the father’s cross-application for a specific issue order to receive regular updates about his son.

Julian Bremner examines whether the decision in Thursfield v Thursfield makes it more likely or not that committal orders in family proceedings will be made

A recent trend in the senior courts has been to curtail and/or remove the, arguably legally unorthodox, practices that have developed over time in family law to deal with a variety of different problems that regularly occur in family proceedings. In particular, Tchenguiz v Imerman [2010] and Prest v Petrodel Resources Ltd [2013] made it plain that the family courts need to play by the ‘same rules’ as their civil counterparts. While this shift has given rise to arguments that the job of the financial matters family lawyer has been made considerably more difficult (and such discussion is not the purpose of this article) the recent Court of Appeal, Civil Division decision in Thursfield v Thursfield [2013] illustrates the more stringent application by the civil courts of processes available in the family law world.

Emily Watson provides clarification on when EU children cases can be dealt with in England and Wales

The case of Re S (A Child) [2013] was heard by Cobb J and dealt with an interesting jurisdictional anomaly, which had arisen as a result of earlier proceedings in the Spanish courts, concerning a child who was habitually resident in England. The mother had agreed to proceedings in 2010 taking place in Spain. To prorogue jurisdiction is to confer jurisdiction by the consent of the parties on a judge who, without that consent, would not be competent to hear the case. In this particular situation, at the time of the 2010 Spanish proceedings, the child was habitually resident in England and so, in consenting to the Spanish courts dealing with the case, the mother had prorogued jurisdiction. However, the mother had now commenced proceedings in England, where she and the child were still habitually resident.

Emily Watson discusses whether the arguments for alternating residence are revolving or evolving

In Re L (A Child) [2012], the Court of Appeal dealt with a number of important issues arising from Brussells II bis (Council Regulation (EC) No 1347/2000 of 29 May 2000), in particular:

In the concluding comparison of approaches to spousal maintenance Julian Bremner, Marjet van Yperen-Groenleer and Kate Mooney examine the Australian system and a range of case studies

In part one of this article ('Hand up not hand out?', FLJ119, September 2012), the focus was on the general approach to spousal periodical payments in England and Wales and also the Netherlands. In this concluding part we will consider Australia in detail and set out a range of comparative case studies as to what the outcome may be in different jurisdictions with the same set of facts.

In the first of a two-part analysis, Julian Bremner, Marjet van Yperen-Groenleer and Kate Mooney compare and contrast the approach to spousal maintenance in England and Wales, the Netherlands and Australia

There have been rumblings and discussions in recent years as to whether it is time for long-term substantive spousal maintenance orders in England and Wales to be reviewed. Historically speaking, the concept of joint-lives orders made perfect sense when on capital distribution the surplus above needs was retained, generally speaking, by the breadwinning male spouse and that spouse then supported their former wife. There are also historical considerations regarding working women that made the concept of a joint lives order, if not palatable, at least logical.

Julian Bremner analyses the impact of the treatment of pre-marriage assets on the courts’ approach

Kv L [2011] is one of those unusual cases where the extreme nature of the facts helps to throw into sharp relief, irrespective of the ease with which this case could be distinguished on its unique facts, those principles of law which were investigated by the courts both at first instance and on appeal. The decision in K v L will assist practitioners in cases where there are significant non-marital assets by offering guidance as to how those non-marital assets should be viewed in terms of needs, compensation and sharing, taking into account how assets were treated during the marriage.