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Family Law Journal: May 2012

Lucy Marks and Vitaliy Eremin compare and contrast the matrimonial regimes in Russia and England and Wales

As international marriages increase, many family lawyers may be faced with the prospect of dealing with properties or assets in Russia or the issue of whether it would be more appropriate for either party to issue proceedings in Russia, if they are able to do so. This article provides a summary of the main differences between divorce proceedings in this country and the Russian Federation.

Mark Pawlowski considers some potentially far-reaching implications arising from recent case law on ownership of the family home

The Supreme Court ruling in Jones v Kernott [2011] has gone some way towards clarifying the correct approach in identifying the parties’ common intention in joint ownership cases in circumstances where it is not possible to deduce their shared intentions from their own express words or conduct. In these limited circumstances it is now open to the court to assess the parties’ respective beneficial shares by reference to a yardstick of fairness. In the result, the Supreme Court restored the order of the trial judge giving the claimant, Ms Jones, a 90% beneficial share in the home in preference to the majority view of the Court of Appeal, which favoured an equal division of the equity reflecting the parties’ joint legal ownership at the time of acquisition.

Richard Adams finds that the welfare of the child remains paramount even in cases involving ‘alternative families’

Few will have missed the recent coverage in the press in which it was claimed that the Court of Appeal in A v B [2012] ‘allowed’ a two-year old boy, born to a lesbian couple and their gay male friend, to have three parents instead of two. It follows several recent high-profile cases in which the courts have grappled with disputes relating to ‘alternative families’. But beyond the headlines, the judgment of Thorpe LJ, Black LJ and Sir John Chadwick reaffirms key principles regarding co-parenting arrangements and raises important issues for the future.

Lauren Hall looks at recent case law regarding the correct approach to be applied upon an article 13b defence of risk of harm

One of the possible defences to a Hague Convention application for child abduction is grave risk of harm to the child. This means that returning the child to where they had been living prior to their removal would place them at risk of grave psychological or physical harm or otherwise place the child in an intolerable situation. This defence derives from article 13(b) of the Hague Convention. The past nine months has seen the Supreme Court turn its attention to this same issue on two occasions. This article will assess the current interpretation of article 13(b) in light of those two cases.

Frances Bailey examines criteria for a wasted costs order and best practice when adding a third party

Practitioners are frequently faced with financial remedy cases involving third parties where beneficial ownership is alleged to be different from the legal ownership of assets in question. Those cases throw up complex issues and costs can easily become disproportionate where third parties chose to, or are forced to, become parties to the proceedings (as so starkly demonstrated by the case of KSO v MJO [2008]). The recent case of Fisher Meredith LLP v JH [2012] brings those issues to the fore and hopefully provides a measure of reassurance and guidance to practitioners.

Caroline Watson suggests potential solutions where delaying a pension sharing order is desirable

Where a couple want to delay implementation of their pension sharing order, the first question is why? Delaying implementation is most likely to appeal in cases where one spouse is retired or is close to retirement and the age at which they can take the pension benefits in accordance with the pension scheme rules is different, for example some occupational pension schemes allow as much as a twelve year age difference. This is probably best illustrated with an example using the police pension scheme.

Claire Glaister highlights the court’s approach to costs in GS v L and issues of conduct

The Family Proceedings (Amendment) Rules 2006 came into force on 3 April 2006 and changed the position dramatically in relation to costs. Previously, costs orders at a final hearing were the norm, with the party who ‘lost’ (ie was awarded a less favourable settlement than they sought or even than the other party had offered) generally being ordered to pay the costs of the other party. Strategic Calderbank offers were common, with lawyers trying to second guess the likely decision of the court. Once the rules had changed, the starting point in relation to costs in family law proceedings was that there would be no costs order. Calderbank offers became a thing of the past and it became essential for practitioners to advise clients from the outset that they would be responsible for their own costs save in exceptional circumstances.