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Family Law Journal: February 2013

Melanie Barnes navigates the labyrinth of the 2007 Hague Convention

The international community has long acknowledged the right of a child and dependants to be supported and this can be reflected in conventions to which many countries are signatory. To this end, various international agreements regarding enforcement have been ratified including the 1956 United Nations Convention on the Recovery Abroad of Maintenance (UN Convention), which made provision for the treatment of originating applications for child maintenance, and the Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations concluded on 2 October 1973 (1973 Hague). The two regimes are distinct in that the UN Convention could be relied upon where a new order for child maintenance was sought, whereas the 1973 Hague only made provision for enforcement of an existing order.

Ellie Foster and Pippa Hayden highlight the impact of third-party resources on maintenance pending suit

The recent published decision of S v M [2012], comprising a short extempore judgment delivered by Coleridge J on 15 November 2012, is both timely and topical, dealing with issues of beneficial ownership and financial support from wider family members. The case concerns an application for maintenance pending suit, an issue which itself seems to have been off the radar in recent years.

Rebecca Tarn sets out best practice for a successful Schedule 1 Children Act 1989 claim

Schedule 1 to the Children Act 1989 enables a parent, guardian, special guardian, or a person in whose favour a residence order has been made, to apply to the court for financial provision for a child. It is primarily used to ensure the adequate provision of a home for a child and/or to obtain an award of periodical payments in cases where the non-resident parent has an income that exceeds the statutory child support maximum level.

Helen Waite and Victoria Ward outline issues of jurisdiction and options when dealing with a divorce with an international element

Increasing employment opportunities abroad are attracting married couples to leave England and Wales, and establish new roots overseas. The courts of England and Wales have a reputation for protecting the financially weaker party in a divorce: since White v White [2000] the courts have not discriminated between financial and non-financial contributions to the marriage. Some may assume that when relocating abroad, the laws of England and Wales will remain applicable but financial proceedings may only be dealt with in this jurisdiction if the requirements of the EU Council Regulation on Jurisdiction and the Recognition of Enforcement of Judgements in Matrimonial Matters of Parental Responsibility (EC No 2201/2003) (Brussells II Bis) are met.

Catherine Morgan looks at the government plans for same-sex marriage and compares them with civil partnership and opposite-sex marriage

Same-sex marriage has been a hot topic since the government confirmed that it will be looking to legalise marriage between same-sex partners and the government bill was passed by the House of Commons on 5 February 2013. This follows on from the government’s response to the same-sex marriage consultation, ‘Equal Marriage: The Government’s Response’ (see www.legalease.co.uk/equal-civil-marriage), which ran from March to July 2012 and received over 228,000 responses. Politicians and religious leaders have been grappling with the legal and social arguments raised by campaigners seeking the right to same-sex marriage, and the government response issued on 11 December 2012 looks to provide a palatable solution for all. Essentially, it aims to ensure that same-sex couples do not face discrimination and so have the right to enter into marriage should they wish to, but that religious houses’ views will be respected and so they will not have to perform same-sex marriages if they do not wish to opt in to this.

Carmel Brown considers the importance of procedure in applications for committal

The Court of Appeal decision in Zuk v Zuk [2012] concerned the husband’s appeal against a committal order for a term of imprisonment of nine months made against him for non-payment of a lump sum order to the wife in financial proceedings and highlights the importance of complying carefully with procedural requirements in a complex area of the law. The Court of Appeal held that under the Debtors Act 1869 the judge at first instance had not had jurisdiction to commit the husband to a term of imprisonment of more than six weeks.

Withers LLP

In the conclusion to a two-part analysis, Suzanne Kingston and Rachael Kelsey examine the New York Convention and international arbitration

Part one - 'Wide focus', FLJ122, December 2012/January 2013

In part one we examined the differences between arbitration in England and Scotland before extending the comparisons to family arbitration worldwide. In this concluding part we will discuss the applicability, or otherwise, of the New York Convention as to the recognition and enforcement of arbitration and set out the remainder of the comparative table for the jurisdictions of England and Wales, France, Germany, Ireland, Scotland, Switzerland and various US states.