Thu05252017

Last updateTue, 24 Feb 2015 5pm

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.

Mark Pawlowski summarises how a non-owning cohabitant can obtain capital provision under the Children Act 1989

In the typical case, a non-owning cohabitant will seek to claim a beneficial interest in their partner’s house by relying on a constructive trust based on either an express or inferred common intention between the parties that ownership of the property was to be shared. Assuming a common intention (coupled with the necessary detrimental reliance) is established, the task of the court is then to assess the actual proportions in which the parties intended to hold the property by reference to what they expressly agreed or, failing that, by a process of inference or imputation from the surrounding circumstances. This approach stems from the combined effect of the House of Lords’ rulings in Lloyds Bank plc v Rosset [1990] and Stack v Dowden [2007] and the Supreme Court decision in Jones v Kernott [2012].

Emma Morris and Lara Myers look at the factors that may prevent pronouncement of a decree, and the increasing calls for the introduction of no-fault divorce

Unlike any other type of legal contract, the contract of marriage involves taking on life-changing financial consequences without being told in advance what they actually are. This would seem wrong and unfair, although marriage is of course more than the sum of its legal parts. But how can you agree to something if you do not know what the consequences of entering into that agreement are? Would it really be so difficult for basic information to be provided to couples at the point they register their wish to marry, even in a simple leaflet form? This should not be seen as a deterrent to marriage, as if one is blind as to the obligations and consequences that will arise in the event that the marriage fails, consent on entering the union is fettered at best.

Izzy Walsh and Floriane Laruelle compare the contrat de mariage with prenuptial agreements

Approximately 165,000 French citizens live in the UK (Population of the United Kingdom by Country of Birth and Nationality, ONS, 2015), and 157,000 British citizens in France (What information is there on British migrants living in Europe?, ONS, January 2017). These statistics mean that it is ever more important to have a basic understanding of how each legal system works and to be able to navigate between the two.

Yorke Eaton and Christopher Noel examine whether the Supreme Court decision in Ilott v The Blue Cross reinforces the principle of testamentary freedom in financial provision cases

On 15 March 2017 the Supreme Court handed down its judgment in Ilott v The Blue Cross [2017]. The case involved a daughter’s long estrangement from her mother, a bitter family feud and a residuary bequest leaving the mother’s estate to charities. The Supreme Court unanimously allowed the charities’ appeal and overturned the previous decision of the Court of Appeal (Ilott v Mitson [2015]), reinstating the judgment at first instance and the award of £50,000 to the claimant (Ilott v Mitson [2014]). The Court of Appeal had substantially increased the award, which had surprised many observers.

Shahida Jogi and Rachel Lim outline how private client and family lawyers can work together

Lawyers today must take a collaborative approach in conjunction with their peers and colleagues to provide rounded and holistic advice to their clients. Family lawyers must be prepared to identify and highlight salient issues, sometimes outside of their field of expertise, and keep abreast of developments in key areas such as property law and private client law. Likewise, a private client lawyer must be aware of when their advice may be complemented by – or conflict with – family law advice.

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.

Laura Guillon analyses a Court of Appeal decision where international assets and a reluctant party prevented the implementation of a financial consent order

In Bezeliansky v Bezelianskaya [2016] the Court of Appeal was concerned with a big-money case, with a convoluted history and a multitude of issues to consider including non-disclosure, the setting aside and variation of consent orders, enforcement, and committal for non-compliance with an order. The decision highlights that even the most carefully crafted financial consent order may be frustrated when parties and properties are located in different jurisdictions.

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