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Family Law Journal: March 2017

Corinne Iten considers when judicial review may be a potential remedy in family proceedings, and the restricted powers of the court even where an application is successful

In exercising their duties under Pt III, Children Act 1989 (ChA 1989), local authorities do (or do not do) a great many things with which parents, and sometimes the children subject to those actions or omissions, do not agree. What they can do about it is a different question. Public law family practitioners will be all too familiar with observations made by judges in the course of care proceedings along the lines of ‘I see that your client is unhappy, but what do you want me to do about it? I don’t have jurisdiction to deal with this point.’

Eugenie Taylor looks at whether it is possible to exonerate a party from their duty of disclosure

In Roocroft v Ball [2016], the Court of Appeal allowed an appeal against an order summarily dismissing the appellant’s application to set aside a consent order made in financial remedy proceedings. The application was made on the grounds of non-disclosure. The respondent was the sister of the deceased, and represented the estate at the appeal hearing.

Philippa Davies and Anna Shadbolt navigate the more problematic aspects of divorce procedure and provide a reminder of the remedies available

Divorce law and procedure can appear easy to navigate, yet for the new (or even seasoned) practitioner there are oddities along the way that require careful consideration. This article explores some of the more unusual elements of divorce law and procedure. With the assistance of key case law, we work through the process from service of a petition to decree absolute, summarising the principal stages and highlighting particular considerations that are sometimes easy to miss. Particular attention is paid to any international considerations that are all too important when advising in today’s increasingly global society. This article highlights the alarm bells that should be ringing where, for example, a respondent avoids acknowledging service, or if there is a dispute as to whether a decree should be granted or rescinded, and provides insight as to how such issues can be dealt with both on a practical and a legal level.

Joanne Green sets out the factors that will be taken into account by the court where a marriage is short, and looks to case law for the principles applied

Practitioners will often deal with cases where the parties have been married for a short length of time, and in some cases the majority of the assets may have been brought into the marriage by one of the parties. These cases are always difficult to assess since most of the relevant case law is not recent and there will be a number of different factors that could affect the outcome.

Camilla Thornton examines case law post-Radmacher where a party has sought to overturn the terms of a nuptial agreement

It has been five years since the Supreme Court held in Radmacher v Granatino [2010] that the court should give effect to a nuptial agreement that is:

Nicola Caffery analyses the evidence required for a non-molestation or occupation order, and guidance on the duration of such orders

The decision in PF v CF [2016] concerned an application by a husband for permission to appeal non-molestation and occupation orders and includes an interesting discussion as to the relevant law. An occupation order (which more often than not goes hand in hand with its non-molestation sibling) remains arguably the most draconian order available to the family courts. To override proprietary rights and exclude a person from their home on the civil standard of balance of probabilities can be punitive and harsh, particularly if the order is made on a without notice (ex parte) basis. The judgment in PF v CF sets out the relevant law to be considered, and examines the issues facing judges at first instance.

Withers LLP

Suzanne Kingston reviews recent developments in the courts’ approach to marital agreements

If 2016 taught us anything it is that any relationship (however old, however established, however intrinsically bound the two parties seem to be together) can come to an end. I am not referring to Brad and Angelina but rather the UK and the EU. It seems to me that there is an analogy between the breakup, and breakdown, of that relationship, and any marriage. In the same way as our exit from the EU must be negotiated and considered, so too does the end of a marriage. One way to avoid the uncertainty and potential acrimony at the end of a marriage is to consider the implications of that end (although seemingly unthinkable at the time) before you get married. If the UK and EU had had the equivalent of a pre-nuptial agreement, things might be very different.