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Family Law Journal: February 2016

Rebecca Harling highlights the consequences of material non-disclosure and the approach of the courts

All parties to financial remedy proceedings are subject to a duty to provide full and frank disclosure on an ongoing basis – this is something that solicitors and barristers alike explain to their clients in no uncertain terms, but unfortunately not all parties take this message to heart. If a party seeks to hide assets, or does not disclose those assets to the other party, the impact on the court’s decision can be huge. If non-disclosure comes to light the court may re-open the proceedings on the application of the disadvantaged party, set aside an order or make a new order, as well make a costs order against the offending party. The decision in KG v LG (No 2) [2015] centred on the issue of the husband’s material non-disclosure in relation to certain family trusts and provides useful guidance on the courts’ approach.

Gordon Dadds

Emma Morris examines the powers of the courts to make civil restraint orders and the circumstances in which such an order may be appropriate

The case of Welch v Welch [2015] has a long and complicated litigation history, often driven by the vexatious litigation behaviour of the wife. In his judgment dated 2 June 2015 ([2015] EWFC B179), DJ Hess (as he then was) said in relation to the wife’s behaviour (at para 33):

JMW

Clare Williams analyses claims under the Trusts of Land and Appointment of Trustees Act 1996 and the court’s potential creativity in such cases

Most family lawyers specialising in financial dispute resolution work mainly within the framework of the Matrimonial Causes Act 1973 (MCA 1973) or the Civil Partnership Act 2004 (CPA 2004). As a result, we are accustomed to a comprehensive redistributive jurisdiction with fairness as its goal. It can therefore be something of a culture shock – notwithstanding what we know and understand on an intellectual level – to encounter a complex financial dispute between former cohabitants in which the future of each disputed asset is decided in accordance with equitable principles.

Lyn Ayrton and Claire O’Donnell suggest that costs orders penalising ‘litigation conduct’ may be on the rise and discuss some recent cases

There are two main types of conduct that may be taken into account by the family courts in financial remedy proceedings:

Seddons

Deborah Jeff considers potential changes to the law relating to cohabitants and provides a timely reminder of the limited remedies currently available

Figures from the Office for National Statistics (ONS) (Statistical Bulletin: Families and Households, 2015) show that more adults in England and Wales now live unmarried with their partner. At least 3.2 million couples have, for whatever reason, chosen to reside together in an enduring relationship but without the legal protection and responsibilities that marriage brings. The statistics in relation to children born to cohabitants perhaps best highlight the societal trend over the last 40 years. In 2014, children born to married parents accounted for 52.5% of births, compared to 91% in 1972 (ONS, Birth Summary Tables, England and Wales, 2014).

Seamus Burns

In the conclusion to a two-part analysis, Seamus Burns looks at the wider considerations revealed in a fertility treatment case and the issues to be addressed

The first part of this consideration of Munby P’s decision in In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] set out the complex background of the conjoined cases before the president and the pertinent law. This concluding part will consider the approach taken by Munby P, the criticisms he levelled at the fertility clinics, and the lessons to be learnt.

Helen Cort outlines the steps that may be taken to enforce child arrangements orders and provides practical tips on the drafting of such orders

The breakdown of relationships between married and unmarried couples with children is far from unusual, but, fortunately, many separated parents are able to agree the future arrangements for their children. There is a recognition that the children are likely to benefit from regular time with each parent, with an absence of parental conflict. While the parents’ personal relationship may have ended, the family relationship continues, albeit in a different form. A research study, Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth (Fortin, Hunt and Scanlan, 2012), funded by the Nuffield Foundation, found that children had positive experiences where there was a cocktail of often interlinked factors, including where: