Wed11222017

Last updateTue, 24 Feb 2015 5pm

Maggie Rae contemplates recent ADR developments and the potential for further change

Family mediation has a long history in this country, with the first family mediation service established in Bristol in 1978. It was the first formal system of alternative dispute resolution available for family disputes in England and Wales, and it has proven successful. Mediation services are now available across the country.

Sian Hodgson and Julia Thackray consider claims under the Inheritance Act 1975 when drafting prenuptial and cohabitation agreements

One thing we can be sure of, post- Radmacher v Granatino [2010], and with the recommendations of the Law Commission on marital agreements yet to be published, is that prenuptial agreements are here to stay. Whether we see a new form of enforceable qualifying nuptial agreement, or whether the law remains within the current discretionary framework, it seems that for many people the promise of autonomy in entering agreements continues to appeal. Family lawyers are familiar with the arguments in favour of and against prenuptial agreements; essentially the benefit of certainty comes at the price of less flexibility to adapt to the particular circumstances of the case, whereas the benefits of a flexible discretionary system are accompanied by uncertainty and cost. We are also now familiar with the issues of enforceability and answering questions on enforceability with ‘it depends…’. One area that poses another problem is that of how a prenuptial agreement affects the position on death and the extent to which an individual’s capacity to make choices about financial provision on death and on divorce are in step.

Emma Mould discusses options when dealing with child support issues

Child maintenance is often seen as a somewhat murky area of countless technical rules and intricate and intersecting jurisdictional issues. However, with an assessment of the client’s reasonable requirements and the opponent spouse’s circumstances (or perhaps their preferences as appropriate) the ‘right’ answer will often reveal itself by a process of elimination. The first port of call will be the Child Support Act 1991 (CSA 1991), which provides the statutory regime for a calculation of child maintenance. A calculation can be applied for by either the parent with care (PWC) or the non resident parent (NRP) where the Child Support Agency (CSA), as administered by the Child Maintenance Enforcement Commission (C-MEC), have jurisdiction unless:

Claire Lawson looks at the new injunction provisions set out in the Family Procedure Rules 2010

In ‘Protective measures’, FLJ 107, June 2011, p5, my colleague Naomi McGloin and I considered the remedies available to spouses who may be concerned that their husband or wife is about to dissipate matrimonial property in light of the breakdown of their marriage. Part 20 of the new Family Procedure Rules (FPR) 2010 introduces a raft of interim remedies available during the course of proceedings for a financial remedy. Of particular note is the provision for an interim order for sale, although the property in question must be of a ‘perishable nature’, or be something else which, for any other good reason, it is desirable to sell quickly. There is also no power to distribute the proceeds of sale following such an interim order pending a final order. As a further available interim remedy against errant spouses, Part 20 FPR 2010 now introduces an ‘interim injunction’. But what is an interim injunction, and in what circumstances will one be granted by the courts in matrimonial proceedings?

Kirstie Gibson studies the courts’ approach to pre-acquired wealth in a long marriage

In Charman v Charman [2007] the court said that for nearly five years, since White v White [2000], courts at every level had been wrestling with the question of whether or not, in departing from equality and striving for fairness, it is proper to take into account and give weight to exceptional wealth creation by one spouse. Most recently this issue has been addressed in N v F [2011], in which Mostyn J considered how the court should, when exercising its powers, reflect, if at all, the property that one party had brought to the marriage.

In the first half of a two-part analysis, Andrew Moore discusses practical and tactical considerations when providing a home under Schedule 1 to the Children Act 1989

Given the diverse nature of the modern family, this article will refer to participants in litigation as ‘applicant’ and ‘respondent’ without reference to gender and/or their stereotypical parenting roles. Practitioners must also bear in the mind that the applicant might well be the child if they are over the age of 18 (Schedule 1, s2 of the Children Act (CA) 1989, but also consider s2(3)) or a guardian, a special guardian or a person in whose favour a residence order is in force with respect to a child (s1(1)).

Luke Barnes cautions against overlooking the significance of joint tenancies and severance

It is a fair bet that most family and private client practitioners will have advised a client to consider severing the beneficial joint tenancy of co-owned property. Typically the issue will arise following relationship breakdown. It is not likely that the client will wish to see their ex-partner take the property under the right of survivorship on the death of the former. However, frequently neither party will take deliberate steps to sever the joint tenancy during the ancillary relief proceedings. After all, the court has wide powers to redistribute assets under Part II of the Matrimonial Causes Act (MCA) 1973 and will rarely devote time to investigating the spouses’ beneficial interests in the former matrimonial home.

Julian Bremner analyses the impact of the treatment of pre-marriage assets on the courts’ approach

Kv L [2011] is one of those unusual cases where the extreme nature of the facts helps to throw into sharp relief, irrespective of the ease with which this case could be distinguished on its unique facts, those principles of law which were investigated by the courts both at first instance and on appeal. The decision in K v L will assist practitioners in cases where there are significant non-marital assets by offering guidance as to how those non-marital assets should be viewed in terms of needs, compensation and sharing, taking into account how assets were treated during the marriage.