Last updateTue, 24 Feb 2015 5pm

Family Law Journal: December 2013/January 2014

Huw Miles looks at the finality of orders and why and how financial orders may be varied

When a court makes a financial order, it must surely be a fundamental principle of law that the order is, so far as possible, final. If we can’t have certainty in a discretionary system, at least let’s have finality. Only a small category of orders are capable of variation. In a specific divorce, the court may only make one order for lump sum or property adjustment provision. A specific pension may only be shared once. Further applications for periodical payments may be prohibited. Permission to appeal is harder to obtain than ever. We just don’t need long dead claims coming back to life.


Eleanor Aguirre summarises best practice when dealing with pension sharing

The majority of financial cases involve pensions in one guise or another. Since the advent of pension sharing orders, they have become the most commonly used approach to dealing with pensions on divorce. As pensions frequently constitute a major part of the matrimonial assets, and in some cases are far and away the most significant class of assets, it’s more important than ever that to approach pension sharing in the right way.

Gordon Dadds

Anna Wagstaff considers competing requirements to protect maintenance creditors and the need to avoid irreconcilable decisions

EU Regulation No. 4/2009 (known as the maintenance regulation) came into force in domestic law on 18 June 2011. Heralded as good news for maintenance creditors, it made it much easier to enforce a maintenance decision made in one member state in another member state. It had been recognised that there is not always a level playing field between the maintenance payer and the payee in EU law. The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 had treated the maintenance creditor as the weaker party, whose position may require particular consideration (Farrell v Long [1997]).

Withers LLP

Jemma Thomas and Nancy Khawam set out the courts’ approach to children’s wishes and feelings, and the weight to be attached to their views

The recent Court of Appeal decision of LC (Children) [2013] contained an interesting discussion as to whether a child can determine their own habitual residence, and the circumstances in which a child’s objections to return under the Hague Convention will be determinative. It is an example of a case where the strongly held views of a child were found to be persuasive.

In the first of a two-part analysis Che Meakins discusses different types of agreements between parties in family proceedings and their impact

The rise of alternative dispute resolution methods may make the likelihood of financial settlements reached outside court more likely and increases the duty on practitioners, when fair and appropriate, to seek to formalise such agreements by way of judicial approval. The importance of this was reiterated recently by Thorpe LJ in Vince v Wyatt [2013]:

Helen Cort examines the evolution of nominal periodical payments orders in favour of the primary carer and the potential impact of the Court of Appeal decision in Matthews v Matthews

How often, as family law practitioners, do we accept that there should be a periodical payments order in favour of the primary carer where there are minor children? While this may often be the appropriate outcome, there may be a danger that practitioners simply accept this rather than carefully analysing the specific merits of each case, particularly in terms of income and the effect the children have had on the applicant’s earning capacity. Nominal orders in such cases became a convention, but what was the basis for it?

Withers LLP

In the conclusion to a two-part analysis Suzanne Kingston, Adele Pledger and Paulina Sandler complete their comparison of spousal maintenance in a range of jurisdictions

In the first part of this article ('Across the globe', FLJ131) we considered spousal maintenance in California, Cyprus, England and Wales, France, Germany, Ireland, Italy and Jersey. As we compare six more jurisdictions we will perhaps get closer to understanding the label attributed to London as the ‘divorce capital of the world’ when we consider the quantum of maintenance awards.