Wed11222017

Last updateTue, 24 Feb 2015 5pm

Withers LLP

Withers LLP

James Copson asks whether the stringent approach to temporary removal applications involving non-Hague countries is justified

The decision in AM v DF [2017] has highlighted once more the choppy waters that separated parents can face when planning trips overseas with their children. In the past, practitioners would often rely on a risk assessment as to the likelihood of abduction, and secure copies of return air tickets, details as to where the children would be visiting and contact telephone numbers, accompanied by an undertaking to return, and the holiday could go ahead as planned. It is now not as simple as that.

Suzanne Todd and Victoria Nottage consider the case for no-fault divorce

As we look forward with a degree of optimism to the Supreme Court’s consideration of our divorce laws in Owens v Owens [2017], following the grant of permission to appeal, the need for reform to include the introduction of a system of no-fault divorce seems more urgent than ever. While the family justice system is currently undergoing administrative reform, the introduction of no-fault divorce requires amendment to primary legislation.

Claire Blakemore and Jemma Thomas give the lowdown on trusts and divorce

Establishing whether the court is likely to view the trust as a nuptial settlement capable of variation, or a resource available to the parties, is often a key consideration in a case where there is a mixture of trust and non-trust assets. Answering these questions involves a detailed analysis not just of the trust documents (including the trust deed, trust accounts, any letter of wishes) but also evidence from any relevant party as to how the trust was managed during the marriage. Sometimes it is a gap in the information that can be important in understanding how a trust will be treated; for example if there is an inconsistency between the family’s earned resources and their lifestyle, it may indicate either the trust or its assets are assisting in meeting the family’s expenditure. It is this level of rigorous scrutiny of family finances that the court will expect. Consistency between how the trust is structured and how it is managed is often a key factor when it comes to analysing the impact of trust interests on the division of assets on divorce.

Claire Blakemore suggests that when dealing with trust assets, even the powers of the family courts have their limits

The law on the treatment of trusts on divorce is constantly evolving. While we await the outcome of the appeal in Quan v Bray [2014] on whether assets held by a charitable trust are available to be distributed on divorce, Moor J has handed down judgment in AF v MF [2016], in which the wife’s claims to assets held by a Liechtenstein foundation were restricted as a result of the by-laws of the foundation and how the assets of the foundation had been used during the marriage. The case illustrates the fact-specific nature of the court’s discretion on the treatment of settlements.

Suzanne Kingston reviews recent developments in the courts’ approach to marital agreements

If 2016 taught us anything it is that any relationship (however old, however established, however intrinsically bound the two parties seem to be together) can come to an end. I am not referring to Brad and Angelina but rather the UK and the EU. It seems to me that there is an analogy between the breakup, and breakdown, of that relationship, and any marriage. In the same way as our exit from the EU must be negotiated and considered, so too does the end of a marriage. One way to avoid the uncertainty and potential acrimony at the end of a marriage is to consider the implications of that end (although seemingly unthinkable at the time) before you get married. If the UK and EU had had the equivalent of a pre-nuptial agreement, things might be very different.

Suzanne Kingston provides an updated guide to jurisdiction on marital agreements

Suzanne Kingston, Mark Haranzo and Delphine Eskenazi review the approaches to pre-nuptial agreements, privacy and alternative dispute resolution in England and Wales, France and the US

Nowadays it is quite common to deal with clients who have international lives – perhaps they have different nationalities, or they travel for work and are not necessarily based in one particular country. We are used to speaking to our colleagues around the world to ask for their help in different situations. Often, we need to inform clients who have a choice as to jurisdiction for divorce where the best place would be for them to divorce. Each country has rules regarding jurisdictional requirements and there can be vastly different outcomes in relation to finances on divorce. As a consequence, making the right decision early on is crucial.

Phineas Hirsch and Robin Paul contemplate whether Brexit complicates or clarifies cross-border private client law and the EU Succession Regulation

The cloud of uncertainty which descended on us all following the 2016 UK referendum on EU membership remains dense and confusing. We confidently expect that Brexit will have a much greater impact on some areas of law than others but the expectation is that in the arena of private client law and succession the effect of leaving the EU will be much less eventful. UK succession law and administrative procedures have never been historically congruent with the EU anyway, and the UK had opted out of the European Succession Regulation (ESR) from the start.

Rita Ku and Philippa Hewitt outline family law in China, and cross-border issues with Hong Kong, in the context of the rapid growth in Chinese high-net-worth divorces

The papers are buzzing with the news of the latest divorce settlement among the ultra-rich in China. This time it is the country’s most affluent couple under the age of 40 who, according to the Hurun report, which tracks wealth among the country’s super rich, have shared assets of 23bn yuan (£2.6bn). According to the Shanghai Securities News (which is run by the official Xinhua News Agency) this could be the country’s most expensive divorce case as the value of the equity transfer will reach 7bn yuan.

Suzanne Kingston and Natalie O’Shea highlight the new children arbitration scheme and analyse the impact of the post-arbitration decision in DB v DLJ

The children arbitration scheme, approved by the Institute of Family Law Arbitrators (IFLA), will be launched in July 2016. In many ways, the children arbitration scheme shares many of the benefits and advantages already familiar from the financial arbitration scheme. The most exciting aspect, perhaps, is the opportunity for parents to dictate the pace of the process itself, in order to meet the specific needs of children and their family in a way that the court system simply cannot do. Time-critical decisions have become increasingly difficult to obtain from our over-burdened court system. Issues concerning education, with looming deadlines for school entrance applications, and arrangements for holidays and Christmas require fast adjudication. In other cases, sensitivity and time is needed to allow children and the family to adjust to changing circumstances, such that they are emotionally and practically ready for the next steps. The children arbitration scheme is specifically designed to allow parents to press on the accelerator, or brake, as and when appropriate for their children during the process of separation.

Amanda Bell and Alasdair Wild highlight pension reforms that may impact on the structure of a financial settlement on divorce

Pensions have long been a valuable vehicle for saving, and therefore an important asset to consider in discussions about the division of assets on divorce. Recent changes in the pensions landscape are dramatic and present a number of potential pitfalls, as well as valuable opportunities, for divorcing spouses. In this article we intend to highlight some issues for matrimonial lawyers to think about when dealing with cases involving pensions.

Brett Frankle examines the courts’ approach to concurrent proceedings and the factors that will be taken into account

Following the House of Lords decision in White v White [2000], family law in England and Wales changed. Out went the concept of limiting a financially weaker party to a sum sufficient to meet their reasonable needs on divorce, and in came the ‘yardstick of equality’. If marriage is truly a partnership of equals then there is no place for discrimination between the contributions each party makes, so went the logic. In practice, on divorce, we now talk about an equal division of the assets as the starting point. There are, however, cases where a departure from equality is justified.

James Copson explores when the court may be willing to make an interim order for sale, and the potential routes to such an order

The decision in BR v VT [2015] is a key staging post in a long journey to establish a means of securing the sale of a family home on an interim basis. It is a common problem, the solution to which appeared (wrongly as it turned out) to have been resolved in Barry v Barry [1992], where the family home had been sold, and it was a concession by one legal team that allowed the net sale proceeds to be distributed on an interim basis.

Suzanne Todd and Laura Kearns consider the implications of the European Court of Human Rights’ decision in Oliari v Italy

The decision of the European Court of Human Rights (ECtHR) in Oliari v Italy [2015] is the latest in a series of cases concerning same-sex unions. It is in line with a growing acknowledgement across Europe, and worldwide, of the right for same-sex couples to obtain legal recognition of their unions and to be granted the rights and responsibilities that such relationships enjoy.

Kennedy v Kennedy [2015] expands the horizons of the doctrine of mistake. Steven Kempster and Sarah Aughwane explain

Two years ago the Supreme Court heard the joined appeals in Pitt v Holt and Futter v Futter [2013]. The resulting judgment marks a turning point in the interpretation and application of the rule in Hastings-Bass and the equitable doctrine of mistake in England and Wales.

Suzanne Kingston, Stacy Choong, Philippa Hewitt and Natalie O’Shea conclude their comparison of family law in England and Wales, Hong Kong and Singapore

The first part of this comparative article ('Same difference', FLJ143) considered the differences (and similarities) between England and Wales, Hong Kong and Singapore regarding financial provision and pre-nuptial agreements. This concluding part will look at cohabitation and approaches to children law, as well as setting out an overall comparison of the three jurisdictions in table form.

Michael Gouriet and Natalie O’Shea consider the validity of the compensation argument in financial remedy proceedings

The Court of Appeal judgment in H v H [2014] confirms that ‘compensation’ as one of the three strands of ‘fairness’, first introduced in the House of Lords case of Miller v Miller; McFarlane v McFarlane [2006], appears alive and well in the Family Division.

In the first of a two-part analysis Suzanne Kingston, Stacy Choong, Philippa Hewitt and Natalie O’Shea set out a comparison of family law in England and Wales, Hong Kong and Singapore

It should come as no surprise, given the historical connections between England, Hong Kong and Singapore, that there are significant similarities between the legal systems of the three jurisdictions. Both Hong Kong and Singapore have common law jurisdictions and the terminology contained in their family statutes will be very familiar to practitioners in England and Wales, albeit rather old-fashioned in terminology. For example, both Asian jurisdictions still refer to ‘custody’ and ‘access’ in children proceedings, and in Hong Kong to ‘ancillary relief’ in respect of the finances flowing from divorce.

Michael Gouriet and Jemma Thomas report on the basis in which an interest in property may be secured by proprietary estoppel

Establishing an equitable interest is an entirely alien concept in many jurisdictions, and the Court of Appeal decision in Davies v Davies [2014] would probably also come as a surprise to many people in this country. The idea that a claim against a thriving family farming business could effectively be based on a promise, originally made by a father to his daughter 25 years ago, certainly takes some explaining.

Philippa Hewitt explores the impact of Radmacher on the approach to marital agreements in Hong Kong

Prior to the decision of the Court of Final Appeal in SPH v SA (formerly known as SA) [2014], a nuptial agreement in Hong Kong (as in England before the decision in Radmacher), be it ante or pre-nuptial or post-nuptial, would only be taken into account as one of the circumstances of the case and was not enforceable. The family law community in Hong Kong has been waiting for a case that brings the principles enunciated in Radmacher (formerly Granatino) v Granatino (pre-nuptial contract) [2010] into law in Hong Kong. The Court of Final Appeal, the highest court in Hong Kong, has now unanimously endorsed the Radmacher approach that the rule that agreements providing for future separation of the parties to a marriage are contrary to public policy is obsolete and no longer applies. In SPH v SA the court looked at what weight should be given to the parties’ election in their pre-nuptial or post-nuptial agreements to have their marriage governed by the laws of a particular country. The case is very much a landmark decision in terms of how the family courts in Hong Kong are likely to consider pre and post-nuptial agreements in other cases.

Vanessa Mitchell examines the options available under the Insolvency Act 1986

Most family lawyers are familiar with the provisions in s37 of the Matrimonial Causes Act 1973 (MCA 1973) and applications for freezing injunctions where there is an intended disposition or transfer out of the jurisdiction with the intention of defeating a financial claim. But as family practitioners, we tend to shy away from the provisions of the Insolvency Act 1986 (IA 1986). The recent decision in B v IB (order to set aside disposition under Insolvency Act) [2013] may give us the confidence to use the additional remedies available under the IA 1986 when the circumstances of the case make it a useful option.

Suzanne Todd and Luca Del Panta examine the future of pre-nups in the light of the Law Commission’s report

When, in October 2010, the Supreme Court handed down its judgment in Radmacher v Granatino [2010] dismissing the appeal of the husband, Nicolas Granatino, against the Court of Appeal’s decision which effectively upheld the terms of his prenuptial agreement with his much wealthier former wife, the German heiress Katrin Radmacher, her press release read:

Claire Blakemore provides a practical guide for trustees in the event of divorce

The American preacher Lorenzo Dow famously said ‘damned if you do and damned if you don’t’ and this could be said to be a fairly accurate summary of the difficult positions in which trustees often find themselves. At the heart of a trustee’s role is the obligation to fulfil their fiduciary and general obligations to their beneficiaries, while acting in accordance with the terms of the trust. Even in a situation where there is harmony between the beneficiaries, meeting those obligations can be a difficult task; but where a beneficiary (or beneficiaries) is involved in divorce proceedings, the role can be most unenviable.

Suzanne Kingston, Adele Pledger and Paulina Sandler examine whether the long-awaited Law Commission recommendations on marital agreements will result in change, or business as usual

We have waited with bated breath for the Law Commission’s report on matrimonial property, needs and agreements since 2009. It finally arrived on 27 February 2014 (see www.legalease.co.uk/matrimonial-property), but what does it mean?

Jemma Thomas and Nancy Khawam review the Supreme Court’s decision in Re LC and consider the impact on future cases

Habitual residence is the first step in determining the court’s jurisdiction in international abduction cases and the recent Supreme Court decision in Re LC (Children) [2014] has far reaching consequences for the determination of the habitual residence of children, particularly adolescent children.

Mark Harper and Will MacFarlane discuss M v M, which has lessons on attacking real estate held by offshore companies

For those who advise clients as to how to structure the purchase of UK real estate in a tax efficient manner, the Supreme Court decision in Prest v Petrodel Resources [2013] and a follow-on decision of King J in M v M [2013] are essential reading.

Employees cannot sign away their right to raise legitimate concerns – but employers’ advisers have found various ways to circumvent the law, argues Andrew Yule

Settlement agreements – and particularly ‘gagging’ clauses (covering confidentiality and non-disparagement) – are a hot topic. On 24 January 2014, the Public Accounts Committee (PAC) published its report into ‘Confidentiality clauses and special severance payments’, concluding that:

In the conclusion to a two-part analysis Suzanne Kingston, Adele Pledger and Paulina Sandler complete their comparison of spousal maintenance in a range of jurisdictions

In the first part of this article ('Across the globe', FLJ131) we considered spousal maintenance in California, Cyprus, England and Wales, France, Germany, Ireland, Italy and Jersey. As we compare six more jurisdictions we will perhaps get closer to understanding the label attributed to London as the ‘divorce capital of the world’ when we consider the quantum of maintenance awards.

Jemma Thomas and Nancy Khawam set out the courts’ approach to children’s wishes and feelings, and the weight to be attached to their views

The recent Court of Appeal decision of LC (Children) [2013] contained an interesting discussion as to whether a child can determine their own habitual residence, and the circumstances in which a child’s objections to return under the Hague Convention will be determinative. It is an example of a case where the strongly held views of a child were found to be persuasive.

Filippo Noseda examines new reporting obligations for trusts in Italy

Since the English aristocracy established the custom of the Grand Tour in the 17th and 18th century, the Italian legal system has had to grapple with trusts. For example, a decision of 1909 from the highest court in Naples had to deal with the effects of a testamentary trust established by the estranged wife of Horatio Walpole, 4th Earl of Oxford, who, after separating from her husband, moved to Florence with her two daughters.

In the first of a two-part analysis Suzanne Kingston, Adele Pledger and Paulina Sandler compare approaches to spousal maintenance in a range of jurisdictions

Given the increasingly international ingredients that make up the family lawyer’s workload, it is useful to compare how different jurisdictions approach the issue of spousal maintenance on relationship breakdown. This is the first in a series of comparative articles; in early 2014 we will be looking at pre-nuptial agreements in different jurisdictions, in light of the forthcoming Law Commission report.

Prest emphasises that it is unfeasible for the Family Division to take a differing approach to other divisions when piercing the corporate veil. Suzanne Todd explains

Most people are familiar with Jane Austen’s introduction to Pride and Prejudice:

James Copson considers the implications and practical consequences of the Supreme Court’s decision in Prest

At first glance the Supreme Court ruling in Prest v Petrodel Resources Ltd [2013] would appear to be a single case-specific decision. It relies on the particular factual matrix and evidence (or, more properly put, lack of it) in the case. However, there are some key practical points that can be extracted from it in cases involving offshore companies holding English property.

Mark Harper and Myfanwy Probyn discuss the circumstances in which a biological father of a child born to lesbian civil partners is not a legal parent

In Re G (A Child); Re Z (A Child) [2013], Baker J handed down a decision in which applications for leave to apply for orders under s8 Children Act 1989 (ChA 1989), by men who provided sperm for lesbian couples in a civil partnership, were considered for the first time following the change in the definition of legal parent brought about by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). HFEA 2008 changed the law so that a biological father is not recognised as a parent and has no legal status with respect to children conceived by lesbian couples who are in civil partnerships at the time of conception.

Dawn Goodman and Geoffrey Kertesz discuss a case that clarifies the grounds upon which protectors can be removed, and also sounds a note of caution for a common practice in the trust industry

Until the Royal Court of Jersey issued its judgment in Re A and B Trusts [2012], there was a paucity of authority setting out the scope of the duties of trust protectors and the grounds on which they could be removed from office.

The result of the Pawson appeal has done little to clarify the criteria for claiming BPR in the case of furnished holiday lettings, as Matthew Woods and Sophie Carter relate

The First-Tier Tribunal set a low threshold for determining whether the activities carried out in respect of a furnished holiday letting business qualified for business property relief. The Upper Tribunal has overturned this decision in a ruling in HMRC v Pawson [2013]. This decision makes it clear that certain activities will be incidental to managing a property as an investment, and therefore insufficient for the property to qualify for business property relief. The facts of the case mean that we still have little clarity as to what activities would be considered sufficient.

In the conclusion to a two-part analysis, Suzanne Kingston and Rachael Kelsey examine the New York Convention and international arbitration

Part one - 'Wide focus', FLJ122, December 2012/January 2013

In part one we examined the differences between arbitration in England and Scotland before extending the comparisons to family arbitration worldwide. In this concluding part we will discuss the applicability, or otherwise, of the New York Convention as to the recognition and enforcement of arbitration and set out the remainder of the comparative table for the jurisdictions of England and Wales, France, Germany, Ireland, Scotland, Switzerland and various US states.

Prest shows that family judges must uphold company law when considering what constitutes the matrimonial pot, as James Copson discusses

In October 2012 the English Court of Appeal produced a landmark ruling in the case of Petrodel Resources Ltd v Prest [2012]. This decision overturned almost 30 years of practice in English family courts in which they had made orders against the assets of companies considered to be the alter ego of one spouse in satisfaction of the claims of the other spouse (after obiter comments made by the Court of Appeal in the case of Nicholas v Nicholas [1984]).

James Copson analyses the impact of Petrodel v Prest and the repercussions for family lawyers

The Court of Appeal decision in Petrodel v Prest [2012] has sent shockwaves across the family law world. By a two-to-one majority, the Lords Justice placed a significant roadblock in the way of claimants seeking the transfer of company-held assets to satisfy claims for financial provision on divorce.

In the first of a two-part analysis, Suzanne Kingston and Rachael Kelsey take a comparative view of arbitration around the world

In September 2012 we spoke at the International Academy of Matrimonial Lawyers in Singapore about arbitration around the world. We are both arbitrators: Suzanne Kingston spearheaded the arbitration training in England and Wales and Rachael Kelsey was one of those instrumental in setting up the arbitration scheme in Scotland. This article deals specifically with the differences between England and Scotland in terms of the arbitration schemes and then extends to consider family arbitration worldwide. We then go on to discuss the applicability or otherwise of the New York Convention in terms of recognition and enforcement of arbitration in the family law context.

Failure to disclose a change in shareholding could result in a large financial penalty, as Colin Smith and Christopher Groves explain

There are strict rules in place on those who hold significant numbers of shares in companies that are listed on a UK-regulated market to report changes in their shareholding – such reports need to be given promptly following the change. Failure to make such a report, or report late, can result in severe penalties. Trustees need to be aware of the obligations and dangers involved in holding such shares, particularly as events such as the retirement of a trustee can trigger a notification obligation. Furthermore, trustees need to be aware that if their beneficiary is a person discharging managerial responsibilities (PDMR) for the relevant listed company whose shares they hold, any change in the shareholding (including any charge granted over the shares), no matter how insignificant, must be reported.

Harriet Atkinson examines HMRC’s new guide to capital taxation and the national heritage

On 14 September 2011 HMRC published their latest version of Capital Taxation and the National Heritage, a 239-page technical guide to the relevant legislation, which also provides guidance on HMRC’s current approach to administering the provisions. The memorandum outlines the scope of the legislation as at 2011 and supersedes earlier editions of the publication (known in its last edition as IR67). It describes the exemptions and reliefs from capital taxation for national heritage property, the arrangements for dealing with claims for these reliefs, the procedures for private treaty sales to national collections, offers in lieu of IHT or estate duty, gifts to charities and arrangements relating to heritage maintenance funds. The guidance can be found at www.hmrc.gov.uk/inheritancetax/conditionalexemption.pdf and through the IHT manual.

Suzanne Kingston summarises the new family arbitration scheme and sets out the processes involved

Arbitration is a form of dispute resolution. The parties enter into an agreement under which they appoint a suitably qualified person (an arbitrator) to adjudicate a dispute and make an award. The Institute of Family Law Arbitrators (IFLA) and the IFLA arbitration scheme (the scheme) have been set up following collaboration between Resolution, the Family Law Bar Association (FLBA), the Chartered Institute of Arbitrators (CIArb) and the Centre for Child and Family Law Reform (CCFLR). The IFLA is a newly formed not-for-profit company, the members of which are CIArb, Resolution and the FLBA. The scheme will operate under the IFLA and has distinct family arbitration rules.

James Radcliffe explains how Pawson has changed tax treatment for furnished holiday lettings

The taxation of furnished holding letting accommodation (FHLs) has evolved at a rapid pace over recent years. Although the legislative changes have contributed to an erosion of historically favourable tax treatments afforded to FHLs, the recent inheritance tax case of Nicolette Vivian Pawson (deceased) v Revenue & Customs [2012] is a welcome victory for taxpayers and is likely to be sending shock waves around the corridors of HMRC. The judgment in this case offers an opportune moment to reflect on recent changes and to highlight how FHLs are likely to be treated going forwards. 


Rupert Cowper-Coles outlines the circumstances in which media law may be relevant in family proceedings

It is common for Article 8 of the European Convention on Human Rights (ECHR) to be referred to as the Convention’s ‘right to privacy’. This description misses out some crucial words – especially in so far as family lawyers are concerned. What Article 8 in fact states is that:

Peter Burgess and Kay Drage discuss the implications of the Court of Appeal decision in Lawrence v Gallagher

The Court of Appeal’s decision in Lawrence v Gallagher [2012] is another milestone towards equality for same-sex relationships following the Civil Partnership Act 2004 (CPA 2004).

Virginia Sherbourne and Vanessa Mitchell look at the lessons to be learnt regarding variation of maintenance from the Court of Appeal decision in N v N

The case of N v N [2011] serves as a useful reminder to practitioners, not only of the principles surrounding variation of maintenance (and the circumstances in which a term/nominal maintenance should or should not apply), but also the perils of dealing with litigants in person.

Katharine Landells reviews Jones, the latest case to show the court’s attitude to inherited assets on divorce

Since the sea change in family law following White v White [2000], it has been a matter of debate as to how inherited wealth should be dealt with on divorce in England and Wales. The Court of Appeal has attempted to grasp the nettle in two recent cases: Robson v Robson [2011] and Jones v Jones [2011]. This article will explain the differing conclusions of the Court of Appeal in those cases and attempt to explain the current law in this developing field.


Vanessa Mitchell and James Copson discuss the changes introduced by the costs provisions in the FPR 2010

To what extent can the family practitioner be relieved that they do not have to adapt to another set of new costs rules with the advent of the new Family Procedure Rules 2010 (FPR 2010) that came into force on 6 April 2011, or disappointed that the much-needed simplification of the rules has been avoided?