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Family Law Journal: April 2016
Withers LLP

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.

In the conclusion to a two-part analysis, Julian Bremner looks at criticisms of costs, unbundled services and weaknesses in the judicial system

Part one of this consideration of current concerns within the family justice system looked at changes to court administration and the issue of proceedings, together with the impact of increased numbers of litigants in person and the difficulties of advising such parties when a final order has already been made. This second part will look at the different ways in which costs are being approached and how judicial allocation may impact on the outcome of a case.

Withers LLP

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.

Justin Slater and Rose Harvey analyse the ramifications of a recent decision on agreements to accommodate children under s20 of the Children Act 1989

While primarily concerned with the jurisdiction of the court to make an order regarding a non-British child, the Court of Appeal in N (Children) (Adoption: Jurisdiction) [2015] also addressed issues arising from the placement in that case of the children in local authority accommodation pursuant to an agreement under s20, Children Act 1989 (ChA 1989). Section 20 provides a powerful tool for good and this discretionary power can both safeguard a child and provide relief for a parent at a time of intolerable stress. While nothing in the leading judgment given by the president of the Family Division, Sir James Munby, in N should discourage the use of s20, there are, as the president reminds us, limits (as set out at paras 157-171 of the judgment). The use of section 20 agreements has been rising steadily since 2013, with 29% of looked-after children in 2015 (19,850) being looked after using s20 (Department for Education, 1 October 2015, see www.legalease.co.uk/looked-after-children). Practitioners must be clear as to exactly what a section 20 agreement is intended to achieve and the nature of its limitations.

Graeme Fraser and Stephen Morrall consider the treatment of joint investments in properties and businesses by a cohabiting couple

The volatile stock market, high property prices and a lack of new housebuilding have made property ownership very attractive. Low interest rates have made investments in property very accessible. Many unmarried couples are pooling their resources to set up businesses and to buy properties both to live in or as an investment. This article examines, using a case study, the position of an unmarried couple who have purchased property and established a business together, but whose relationship then breaks down.

Fiona O’Sullivan, Mark Surguy and Gareth Griffiths compare and contrast the approaches to privacy and disclosure in family and commercial cases

There is a tension between the duties owed by commercial entrepreneurs, who are familiar with their legal obligations in the commercial world but face uncomfortable obligations when personal family matters overlap with their business interests. The recent decisions in Sharland v Sharland [2015] and Gohil v Gohil [2015] have highlighted the stringent duties on parties trying to secure financial settlement, within the context of divorce proceedings, in providing full and frank disclosure of their financial positions. It is a well-established principle also that in such proceedings there is an implied undertaking from both parties not to disclose that information outside the court arena. The obligation to provide full and frank disclosure can, however, cause significant practical problems for spouses who are bound by confidentiality obligations outside the family, for example in relation to their business interests.

Vicki McLynn details the courts’ approach to persistent applications under Sch 1 and whether standard of living should be a consideration

The decision in GN v MA [2015] raises the question of whether, when the courts seek to limit excessive claims made on behalf of children under Sch 1 to the Children Act 1989 (ChA 1989), there is a risk of discrimination. The case concerned a claim made on behalf of a boy, age seven, by his mother. The most recent hearing, in December 2015, related to an application by the mother to increase the periodical payments being paid by the father for the benefit of the boy from £204,000 pa to £780,000 pa.