Wed11222017

Last updateTue, 24 Feb 2015 5pm

Ellen Walker sets out the principles applied where a party seeks to protect their interest against a trustee in bankruptcy using equitable principles

The equity of exoneration arises where property is jointly owned by parties A and B, and B incurs a debt that is charged against the whole property. In such cases A is or may be entitled to a charge over B’s share of the property to the extent that B’s indebtedness can be paid out of A’s share. In practice this means, in the event of a sale, that the secured creditor will be paid out of B’s share in the first instance and will only have recourse to A’s share once B’s share has been exhausted. This is likely to arise where:

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.

Ayesha Vardag and John Oxley analyse the latest judgment in Chai v Peng, and the court’s approach to the law in a connected jurisdiction

The decision in Chai v Peng [2017] has confirmed that the vision of an ancillary relief judge should not wander to the laws of other jurisdictions, save in the rarest of circumstances. In Chai, Bodey J upheld the English approach to ancillary relief and showed that the courts in England and Wales will not bend to the potentially unfair practices of other jurisdictions.

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.