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Family Law Journal: March 2011

Sarah Passemard and Helen Cort examine the Court of Appeal’s decision in Re F (Children: Internal Relocation) [2010] and consider whether it marks a change in the court’s approach to internal relocation cases

In an ever more mobile society, family law practitioners are increasingly faced with cases where the issue is whether children should move to a new location. This is true not only of cases where it is being proposed that the children should move abroad, but whether children be allowed to move within the jurisdiction.

Lucy Loizou and Hannah Budd set out the potential options for marital agreements as considered in the Law Commission’s consultation paper

On 11 January 2011 the Law Commission published their much-awaited consultation paper, Marital Property Agreements, which seeks opinions on a range of options for reforming the law on pre-nuptial, post-nuptial and separation agreements. Both the consultation paper and executive summary are available on their website. The key questions to be considered are:

Chris McIntosh reviews the courts’ approach where the marital assets are inherited as in the decision in Robson v Robson

The case of White v White [2001] introduced the concept of checking the division of assets upon marriage breakdown against the yardstick of equality. In the intervening years, case law has progressed from the majority view in that case to be more in line with the approach of Lord Cooke. His Lordship doubted that there was much difference between using a yardstick of equality to check the division of assets or using equality as a starting point. It is now generally accepted that, following a long marriage, the starting point should be an equal division of assets and that good reasons are required to depart from this approach. ‘Good reasons’ cited include:

Seamus Burns

In the conclusion to his two-part analysis of the regulation of embryology, Seamus Burns highlights the work undertaken by the Human Fertilisation and Embryology Authority

The Human Fertilisation and Embryology Authority (HFEA), acting under the auspices and aegis of the Human Fertilisation and Embryology Act 1990 (HFEA 1990) and now the Human Fertilisation and Embryology Act 2008 (HFEA 2008), has incontrovertibly regulated and policed a burgeoning assisted reproduction industry over the past almost 20 years.

In the conclusion to their two-part discussion Claire Glaister and Frances Bailey look at less commonly used divorce practice and procedure

As with part one of this guide ('Practice points', FLJ103), references are to the relevant rules in the Family Proceedings Rules 1991 (FPR 1991). However, since the first part of our article was submitted, the Family Procedure Rules 2010 (FPR 2010) have been published and it has been confirmed that they will come into force on 6 April 2011. The procedure remains mostly the same but the language has changed substantially, not least that a divorce petition will be known, from April, as an application for a matrimonial order. At the time of finalising this article, the accompanying practice directions were not available but reference has been made to the new rules (where found), alongside the existing references below.

James Riby and Cora Brown focus on the courts’ approach in cases involving trust assets

The decision in M v W (Ancillary Relief) [2010] is an interesting example of the extent to which trustees can be ‘judicially encouraged’ to realise and distribute capital where there are relatively few other liquid assets to meet needs. The case also involved a post-nuptial agreement that was a relatively minor feature in the proceeding, although it should be noted that the decision in M v W was pre- Radmacher.

Kirstie Gibson outlines the differences between applications to set aside and appeals in the light of recent Court of Appeal decisions

The recent Court of Appeal decision in Kingdon v Kingdon [2010] provides helpful guidance on the approach to take in applications to set aside an ancillary relief order where the order has been invalidated by non-disclosure.