Mon06262017

Last updateTue, 24 Feb 2015 5pm

Rebecca Harling summarises the approach to privacy in family proceedings and asks whether the current system lacks clarity

Open justice is one of the oldest principles of English law, going back to before the Magna Carta. Jeremy Bentham famously declared that ‘publicity is the very soul of justice’ (Works, Vol 4, 1843). Traditionally the desire for proceedings to be held in the public eye ensured the moral integrity of both the tribunal and truthfulness of any witnesses, but also served to shed light on the legal process and promote a greater public confidence and understanding in the law. In this way justice is not merely being done, but it is being seen to be done.

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 CPA 2004 was not repealed and this created a situation where same-sex couples had two options available to them in order to legally formalise their relationship: civil partnership or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.

Rayner Grice highlights the impact of a Supreme Court decision on pension rights and the implications for cohabiting couples

The Supreme Court ruling in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] concerned an appellant who had lived with her partner for ten years when they became engaged on Christmas Eve 2009. Sadly the appellant’s partner died two days after their engagement. At the time of his death the deceased was employed by Translink, a public transport operator for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the local government pension scheme. The appellant believed that her late partner had completed a form in which he nominated her to be eligible for a survivor’s pension in the event of his death. However, the Northern Ireland local government officers’ superannuation committee (the superannuation committee), who administered the scheme, said it had not received any form. They therefore refused to pay her a survivor’s pension.

Matthew Taylor looks at delay in financial proceedings and the more generous approach taken by the court in Briers v Briers

It seems that, much like buses, you wait an age for a delay case and then two come along at once. Hot on the heels of the judgment in the permission to appeal case of Waudby v Aldhouse [2016] came the Court of Appeal decision in Briers v Briers [2017].

Caroline Holley examines dependence, independence and variation in the context of joint lives maintenance orders

The high-profile case of W v W [2015], which many saw as the first real movement of the pendulum swinging away from the ‘meal ticket for life’ of joint lives spousal maintenance orders, has seemingly led to a surge in applications by paying spouses to vary or terminate such orders. As readers will remember, in W v W, Pitchford LJ dismissed a former wife’s application for permission to appeal against an order substantially reducing her maintenance. He upheld the view of the judge in the lower court that the former wife should exploit her earning capacity and contribute to her own financial needs.

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.

Shlomit Glaser and Tim Jones examine issues of privacy and confidentiality in family proceedings

Confidentiality can be a significant issue in family proceedings for many divorcing couples. This is particularly so for those going through a divorce where substantial assets are at issue, in the shadow of legal proceedings. For public figures, there may be the desire to protect a modicum of a private life. For others, who have no public profile, there will be the wish to avoid becoming the focus of critical media attention purely because there are large sums at issue, or there is some newsworthy aspect to the way that one or both parties have behaved. In all cases, confidentiality may help to preserve the equanimity of the parties in what can be an acrimonious and stressful case. Most recently the matter has attracted some attention because of the publicity given to Brad Pitt and Angelina Jolie’s divorce, where it seems that the actors have agreed to keep future details of their divorce confidential by using a private judge as they work to ‘reunify’ the family. Closer to home, the issue of confidentiality was discussed further following the decision of the High Court that the financial details of Liam Gallagher’s divorce to Nicole Appleton could not be reported. Similarly, restricted information emerged following the divorce of David Walliams from Lara Stone, where it was ordered that the terms of the financial agreement between them could not be revealed by the media. In essence, all the media could report was that a hearing had started on one day and ended in agreement the next.

Moji Sobowale outlines the law relating to the recognition of an overseas marriage, and the potential outcomes on an application for a declaration of validity

The issues surrounding the recognition of foreign marriages are far from straightforward, and the outcome seldom pleases all parties. The matter becomes more complex when religious ceremonies, sometimes celebrated without a clearly dictated form, are then the subject of English divorce proceedings.