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Last updateTue, 24 Feb 2015 5pm

Slater and Gordon

Slater and Gordon

Joanne Green looks at the limited circumstances in which an order made by consent may be set aside on the basis of duress

Family practitioners will know that there are limited circumstances where the court will set aside a consent order. In financial proceedings, it is accepted that a consent order can be set aside if at the time that the order was made there was non-disclosure of some essential matter, fraud or misrepresentation, or a supervening (Barder) event that invalidates the whole basis of the order. In both Tommey v Tommey [1983] and Livesey (formerly Jenkins) v Jenkins [1984], whether undue influence could also be a ground for setting aside a consent order was considered, but the courts found that it could not be. This area of law has now been considered further in the child abduction case of SA v FA (setting aside consent order on ground of duress) [2017], with Holman J providing useful guidance on the matter.

Joanne Green sets out the factors that will be taken into account by the court where a marriage is short, and looks to case law for the principles applied

Practitioners will often deal with cases where the parties have been married for a short length of time, and in some cases the majority of the assets may have been brought into the marriage by one of the parties. These cases are always difficult to assess since most of the relevant case law is not recent and there will be a number of different factors that could affect the outcome.

Amy Harris examines the factors that will be considered by the courts on an application for the internal relocation of a child

The Court of Appeal’s decision in Re C (Internal Relocation) [2015] is essential reading for practitioners and provides a helpful re-examination of the issues that affect the court’s decision-making process in relation to the external and internal relocation of children. The judgment helpfully summarises how the historical approach to internal relocation has clashed with the principles associated with external relocation, but has also at times been complementary to them.

Fiona Wood summarises the courts’ approach to periodical payments orders and the limited circumstances in which a stepped order will be appropriate

In Aburn v Aburn [2016], a smaller money case where a stepped periodical payments order had been made at first instance, the Court of Appeal helpfully reviewed the law relating to periodical payments.

Vicki McLynn details the courts’ approach to persistent applications under Sch 1 and whether standard of living should be a consideration

The decision in GN v MA [2015] raises the question of whether, when the courts seek to limit excessive claims made on behalf of children under Sch 1 to the Children Act 1989 (ChA 1989), there is a risk of discrimination. The case concerned a claim made on behalf of a boy, age seven, by his mother. The most recent hearing, in December 2015, related to an application by the mother to increase the periodical payments being paid by the father for the benefit of the boy from £204,000 pa to £780,000 pa.

Joanne Green looks at business assets including valuations, issues of liquidity and the options available to the court

When parties’ assets comprise a business or a share in a business, it can give rise to complex issues regarding how the asset should be dealt with by the court. In considering a business asset, it is first necessary to determine what value the business has, and, once the value has been established, it is then essential to consider how this value should be reflected in the overall financial settlement between the parties.

Fiona Wood looks at the need to comply with the Family Procedure Rules 2010 and best practice when instructing experts in financial cases

It is often necessary to instruct experts in financial cases. Usually experts are instructed to value business interests and properties, but they can also be instructed to value more unusual items such as works of art or to provide specialist tax advice in cases with an international element. While expert evidence can be needed to deal with a wide range of issues, the rules which apply to obtaining this evidence are the same. These rules are contained in Part 25 of the Family Procedure Rules 2010 (FPR 2010) and PD 25D. If you follow the rules you should not become unstuck!

Kim Harrison explains the importance of the Human Rights Act in neglect and sexual exploitation cases

The scope and reach of the Human Rights Act (HRA) and the European Convention of Human Rights (ECHR) upon our legal system is a topical debate. Sections of the British press along with the newly elected Conservative government argue that the HRA and ECHR have pushed the boundaries of human rights jurisprudence further than was ever intended by the politicians who enacted the HRA.

Richard Scorer considers failure to protect claims

Over the last three years, since the revelations about Jimmy Savile, child abuse scandals have dominated the media. Many more victims have come forward and there has been a significant increase in prosecutions for sexual offences. Some of these prosecutions relate to ‘historic’ offences, ie crimes committed decades ago. Other prosecutions relate to more recent events, for example, child sexual exploitation in Rochdale and Rotherham. This wave of prosecutions shows no signs of abating and many victims will also look to the civil courts for compensation. Because their abusers are often ‘men of straw’, victims will consider whether claims can be brought against organisations that are alleged to have failed in their duty of care to the victim. Frequently, that organisation may be a local authority.

Amy Harris sets out the courts’ approach to cases in which assets derive from a personal injury award

Divorce and personal injury can be two of the most challenging and devastating events in a person’s life. Research shows that the instance of divorce increases where a party to the marriage has suffered a personal injury. Cases involving personal injury and divorce can be complex. Practitioners must balance the competing interests of the respective needs of the spouses, one of which may have suffered life-changing injuries, and the needs of any children of the family. In this article the term ‘divorce’ also refers to civil partnership dissolution.

Tara Deegan sets out two of the key developments in the family justice system: compulsory MIAMs and the introduction of the single family court

Some of the biggest changes to the family law justice system took place in April 2014. Reforms set out in the Children and Families Act 2014, amending the pre-action protocol in the Family Proceedings Rules 2010, provide that prior to commencing court proceedings to resolve a dispute over children or financial matters, an applicant will first be required to attend a mediation information and assessment meeting (MIAM). The changes follow the review of the family justice system in 2010/11, during which David Norgrove, chair of the Family Justice Review committee, stated that there was support for compulsory assessment for mediation.

Amy Harris looks at the Cohabitation Rights Bill and the array of provisions dealing with cohabitation for both cohabitants and spouses

The Office of National Statistics reports that cohabitation is the fastest growing family type in the UK. The number of people cohabiting has doubled since 1996 and more children are now born to unmarried parents than married parents. Many couples still believe in the notion of a ‘common law’ husband or wife. It is clear that there is inadequate information and guidance readily available for cohabiting couples about their legal position.

Following recent findings that one in seven women on maternity leave do not have a job to go back to, Harriet Bowtell considers the rise in the number of maternity-leavers being made redundant

Many employment law practitioners have seen a recent rise in pregnancy and maternity discrimination, particularly when connected with redundancy. This experience was supported by the findings of research commissioned by Slater & Gordon earlier this year into the experience of new mothers returning to work. The headline finding was that one in seven women did not have a job to go back to. Another key finding was that of the 40% of women who said that they returned to a changed position, almost half felt that the job they returned to was somehow worse than the job they had left. More than a quarter of these women had had their request for flexible working arrangements refused.

Lorraine Harvey assesses the courts’ approach and best practice when advising on pre-nuptial agreements

In recent years there has been a sharp rise in the number of couples entering into a pre-nuptial agreement largely due to the landmark ruling in Radmacher v Granatino [2010] when the Supreme Court held that:

Chris McIntosh analyses the overhaul of the child support system

In July 2012, the coalition government published a public consultation document, ‘Supporting Separated Families; securing Children’s Futures’, in relation to the child maintenance service. The full consultation document can be found at www.dwp.gov.uk/consultations/2012/childrens-futures.shtml. This article concentrates on the proposed changes to the child maintenance system and how these are intended to operate in practice.

Chris McIntosh and Duncan Ranton summarise lesser-known aspects of the EU maintenance regulation

There has been a lot of interest over the past year in the family law world, regarding the new EU maintenance regulation, Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the maintenance regulation), which came into force on 18 June 2011.

Caroline Watson suggests potential solutions where delaying a pension sharing order is desirable

Where a couple want to delay implementation of their pension sharing order, the first question is why? Delaying implementation is most likely to appeal in cases where one spouse is retired or is close to retirement and the age at which they can take the pension benefits in accordance with the pension scheme rules is different, for example some occupational pension schemes allow as much as a twelve year age difference. This is probably best illustrated with an example using the police pension scheme.

Aina Khan compares and contrasts Islamic family law with domestic family law

This is a fascinating area of law and one that is seeing rapid development. This is a time when anyone who wants to become embroiled in controversy only has to use the word ‘Sharia’. Since February 2008, when the Archbishop of Canterbury caused a furore by saying that Islamic family law was ‘inevitable’, Sharia law has not been out of the news. There are currently bills pending in many US States proposing the outlawing of religious law. Ironically this will affect Jewish Beth Din as well as Sharia councils.

Caroline Watson and Matthew Feldman discuss the impact of Jones v Kernott in cases where there is an express declaration of beneficial interests

Successive governments have been reluctant to pass legislation in relation to the interests of unmarried cohabitants in property on the breakdown of the relationship, and the present government has indicated that it does not intend to take forward the Law Commission’s recommendations for reform of cohabitation law in this parliamentary term. It has therefore been left to the courts to determine this difficult area. This point was referred to by their Lordships in Jones v Kernott [2011]. Lord Wilson said, at para 78: