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Family Law Journal: June 2013

Emily Watson provides clarification on when EU children cases can be dealt with in England and Wales

The case of Re S (A Child) [2013] was heard by Cobb J and dealt with an interesting jurisdictional anomaly, which had arisen as a result of earlier proceedings in the Spanish courts, concerning a child who was habitually resident in England. The mother had agreed to proceedings in 2010 taking place in Spain. To prorogue jurisdiction is to confer jurisdiction by the consent of the parties on a judge who, without that consent, would not be competent to hear the case. In this particular situation, at the time of the 2010 Spanish proceedings, the child was habitually resident in England and so, in consenting to the Spanish courts dealing with the case, the mother had prorogued jurisdiction. However, the mother had now commenced proceedings in England, where she and the child were still habitually resident.

Pannone LLP

Fiona Wood looks at the type and appropriateness of interim capital orders that may be made under a variety of provisions

Practitioners will be familiar with the Court of Appeal decision in Wicks v Wicks [1997] that established that there is no power under the Matrimonial Causes Act 1973 (MCA 1973) to make an order for sale of a property or an order for vacant possession of a property on an interim basis. Furthermore, the court in Wicks held that even if it did have the power to order the sale of a property on an interim basis, it did not have any power to apply the proceeds of sale of the property on an interim basis under the inherent jurisdiction. While orders for periodical payments under s22 MCA 1973 can deal with some interim issues, they cannot deal with them all. So, how do you obtain interim orders relating to the sale of a property or the provision of a lump sum if that is what your client needs?

Felicity Shedden examines whether the hybrid ADR process of mediation-arbitration is dangerous territory or exciting opportunity

With the advent of the Institute of Family Law Arbitrators (IFLA) arbitration scheme, it seemed inevitable that, sooner or later, the controversial question of the hybrid process, mediation-arbitration, would rear its head. What remains to be seen is whether this will be greeted with enthusiasm or horror by the family dispute resolution fraternity.

Huw Miles analyses issues of evidence regarding complex trust and corporate entities as highlighted in the decision of CR v MZ

The decision of Jonathan Cohen QC, sitting as a deputy High Court judge, in CR v MZ [2013] is arguably more remarkable for the litigation (and other) conduct of the parties, rather than for the clarification of any legal principle but there are perhaps other lessons to be learned. The judge was moved to make a number of critical comments, especially of the husband and his father, who was also a party to the case, describing the husband as ‘long winded’, ‘dogmatic’, ‘combative’, ‘deflective’ and ‘vague’. Crucial documents were described as ‘shams’, created to give ‘a false picture and to mislead the court and/or the wife’.

In the first part of a two-part article on the changing legal market, Paul Linsell and Kate Stovold discuss the importance of costs information

If you speak to any family lawyer at the moment it is almost certain that they would agree that they are operating within a changing marketplace. Indeed in some circles it has been referred to as ‘the perfect storm’, with the demise of legal aid for most family law cases, the growing presence of ABS competition, continued rapid changes in technology and a change in the dynamics of the clients that use family law services. While it is undoubtedly both scary and exciting to be presented with the challenges of a changing marketplace, this climate of change begs the question: what can family lawyers do to survive and even thrive in this environment?

Brachers

Stephen Smith highlights areas of conflict between family law and other divisions and the potential issues that may arise

As a family lawyer I, along with my colleagues, await the Supreme Court’s decision in Prest v Prest [2011]. It seems that we are continually awaiting the next major decision. Within financial provision cases we look for the next decision that will shed light on how we interpret the Matrimonial Causes Act 1973 (MCA 1973) and we seek the panacea that will allow us to give our clients a clearer idea as to how the courts will deal with their claim, regardless of the venue or the judge who may hear the case. Whenever we see a Trusts of Land and Appointment of Trustees Act 1996 decision we quickly look through our files to see if there has been a sea change and we question whether the point has come for cohabitants to enjoy greater financial rights. We shake our heads when we read judgments dealing with issues of ‘self-help’, non-compliant spouses and of the corporate veil being allowed to be used to hide one party’s assets from the spouse they are divorcing, and we say that the decision may have been different if the structure of the court had comprised family judges.

Kirstie Gibson considers the court’s approach where a Schedule 1 application is made by a non-resident parent

In N v C [2013], an interesting decision regarding an application under Schedule 1 to the Children Act 1989 (ChA 1989), two key issues arose: