Sun11192017

Last updateTue, 24 Feb 2015 5pm

Family Law Journal: December 2017/January 2018

Katie Chew explains the lessons to be learnt from a decision of Mostyn J on how not to make a without notice application for a freezing order

In Tobias v Tobias [2017], Mostyn J found himself once again giving guidance on the correct procedure to be adopted for without notice (ex parte) applications in general, and specifically on an application for a freezing order, in addition to the correct use of the ‘out-of-hours’ judge. This case is a pithy reminder to practitioners considering making such applications, and serves as a warning not to do so unless there are sufficient grounds and the situation is of an emergency nature.

Joanne Green looks at the limited circumstances in which an order made by consent may be set aside on the basis of duress

Family practitioners will know that there are limited circumstances where the court will set aside a consent order. In financial proceedings, it is accepted that a consent order can be set aside if at the time that the order was made there was non-disclosure of some essential matter, fraud or misrepresentation, or a supervening (Barder) event that invalidates the whole basis of the order. In both Tommey v Tommey [1983] and Livesey (formerly Jenkins) v Jenkins [1984], whether undue influence could also be a ground for setting aside a consent order was considered, but the courts found that it could not be. This area of law has now been considered further in the child abduction case of SA v FA (setting aside consent order on ground of duress) [2017], with Holman J providing useful guidance on the matter.

Hall Brown

Abigail Lowther considers sham trusts and their effect on financial claims

In ND v SD [2017] Roberts J considered sham trusts, the beneficial ownership of various shareholdings and an application to set aside a disposition under s37, Matrimonial Causes Act 1973 (MCA 1973).

Danielle Taylor sets out the circumstances in which the courts may prohibit a party from making further applications, and the limitations of such orders

The decision in Veluppillai v Veluppillai [2015] was widely reported, both in the legal world and the wider press, gaining attention due to the litigation conduct of the husband that not only included emails (including extreme expletive language and threats against Mostyn J and his clerk), but also a prosecution for assaulting the wife and her counsel during one of the hearings.

Rachel Nicholl highlights a remedy available where a litigant wilfully fails to comply with a court order

In Assoun v Assoun [No 1] [2017] and Assoun v Assoun [No 2] [2017] the Court of Appeal was concerned with a Hadkinson order made in financial proceedings where the husband argued that the use of the order was procedurally unfair, wrong in law and disproportionate.

Beth Mason and Georgia Day examine a case involving a large amount of assets, but also issues relevant to cases concerned with lesser sums

The decision in AAZ v BBZ [2016] caused a stir in large part due to the level of award granted to the wife. A settlement of £453m is, by any standards, a very high-net-worth case. However the size of the award is, of course, governed largely by the amount of the parties’ assets, and what is of greater interest to family practitioners is the analysis by Haddon-Cave J and the issues arising after the final hearing. The case was heard in December 2016, but the judgments were published several months later.

Switalskis

Andrew Baines explores the use of power in resolving issues arising from family breakdown

Family lawyers have a certain reticence towards talking about power when their discussions take place, either by correspondence or in court. Somehow it just doesn’t seem right that the welfare of a child should be intimately bound up with issues of power. However, wherever there is conflict about what is in the best interests of a child, where there is disagreement as to what a child’s welfare demands, that conflict is almost always resolved through the use of power. Power comes in a number of guises and it isn’t equally distributed. This article seeks to shed a little light on how power manifests itself in conflicts concerning a child’s welfare.