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Family Law Journal: June 2011

David Salter contemplates recent legislative changes to pension provisions

On 6 April 2011, not only did we see the new pensions procedures in the Family Procedure Rules 2010 (FPR 2010) come in to effect, but also the eight new sections introduced into the Matrimonial Causes Act 1973 (MCA 1973) by the Pensions Act 2008 (PA 2008). Each of these areas contains much of importance with which the family lawyer should be familiar. As will be seen, the changes brought about by PA 2008 have resulted in further new procedures being introduced in the FPR 2010.

David Hodson highlights the provisions of the new EU maintenance regulations

On 18 June 2011, the EU Maintenance Regulation of 18 December 2008 will apply directly within English domestic law, replacing Brussels I, and covering all family law maintenance obligations across Europe. The good news is that it makes it much easier to enforce a maintenance obligation made in one country in the member states of another country where the paying party is based and/or receiving income. The bad news is that if one country has jurisdiction to deal with maintenance issues, perhaps based on an agreement of the parties many years previously, then the divorce and property sharing will be dealt with by the courts of one country and maintenance separately in another country. This separation is very alien to English family law culture and resolution. With many more international families across Europe, this will be very important legislation for the English family lawyer.

Frances Bailey and Steven Watson examine the options when dealing with family businesses

When it comes to negotiating financial settlements, finding the right result for our clients is rarely easy, but where a family business is involved it is even more complex. Where the majority of the parties’ assets are tied up in that company the need for the lawyers, and other professionals, to work together, and think outside the box to try and find inventive settlements, becomes paramount.

Robert Holland considers the forensic accountancy aspects of valuations and earning capacity in the Court of Appeal’s decision in Jones v Jones

The recent Court of Appeal decision in Jones v Jones [2011] held that a spouse’s established earning capacity at the date of the marriage should not be capitalised, or otherwise brought into account. The judgment also includes a detailed consideration of the concept of latent value, or in the judge at first instance’s words, the ‘spring board’. Although a professional expert valuation using a traditional methodology would generally potentially take account of such a spring board, occasions might occur where it failed to do so for some reason.

Anthony Gold

Margaret Hatwood outlines the court’s approach when a payee under a financial order cohabits

Maintenance for ex-spouses is often provided for until the payee remarries, unless one party dies sooner, especially where the family has young children. However, cohabitation with another partner is not a specific factor that can be taken into account under the Matrimonial Causes Act 1973, not even on a maintenance variation application. At best, cohabitation comes within one of ‘the circumstances of the case…’, or a change of circumstance in variation cases. In one recent case ( H v H; Grey v Grey [2009]), a judge allowed an ex-wife to receive maintenance for herself even though she had been living with a new man for some weeks and she was pregnant with his child. Is this right? What can you do if you have a client in this position? Many lawyers consider that this outdated position is long overdue for reform. The position is very different in Scotland, for example, where maintenance for ex-spouses is limited to a three-year period.

Farrer & Co

Hannah Clark analyses the limited circumstances in which the courts will reopen a final financial order

As family lawyers, we are well accustomed to the touch of the family courts’ hand on divorcing couples’ shoulders. However, the case law on Barder events (per Barder v Barder (Calouri intervening) [1987]) casts the judiciary in a less protective light. Judges have made it clear that supervening circumstances have to go beyond our clients’ wildest dreams of tragedy (or, presumably, serendipity) in order to compel the court to revisit a final order it feels has been ‘put to bed’.