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Family Law Journal: May 2017

Rayner Grice highlights the impact of a Supreme Court decision on pension rights and the implications for cohabiting couples

The Supreme Court ruling in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] concerned an appellant who had lived with her partner for ten years when they became engaged on Christmas Eve 2009. Sadly the appellant’s partner died two days after their engagement. At the time of his death the deceased was employed by Translink, a public transport operator for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the local government pension scheme. The appellant believed that her late partner had completed a form in which he nominated her to be eligible for a survivor’s pension in the event of his death. However, the Northern Ireland local government officers’ superannuation committee (the superannuation committee), who administered the scheme, said it had not received any form. They therefore refused to pay her a survivor’s pension.

Danielle Taylor considers the arguments for and against making civil partnership available to opposite-sex couples

Since 2004 civil partnerships have been available to same-sex couples as a result of the Civil Partnership Act 2004 (CPA 2004), which was originally introduced in order to provide same-sex couples with the means by which their relationship could be legally recognised, and to enable them to have the same financial rights and recognition as a married couple. It was a compromise introduced on the basis that it was felt that legislation introducing same-sex marriages would not be passed based on views held at the time. Subsequently the Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013) provided same-sex couples with the opportunity to enter into a marriage (or convert their civil partnership into a marriage) should they wish. CPA 2004 was not repealed and this created a situation where same-sex couples had two options available to them in order to legally formalise their relationship: civil partnership or marriage. A bar in the legislation at s3(1)(a), CPA 2004 prevents opposite-sex couples from entering into a civil partnership and means that, in contrast, opposite-sex couples only have one option available to them, ie marriage.

Hall Brown

Laura Guillon analyses a Court of Appeal decision where international assets and a reluctant party prevented the implementation of a financial consent order

In Bezeliansky v Bezelianskaya [2016] the Court of Appeal was concerned with a big-money case, with a convoluted history and a multitude of issues to consider including non-disclosure, the setting aside and variation of consent orders, enforcement, and committal for non-compliance with an order. The decision highlights that even the most carefully crafted financial consent order may be frustrated when parties and properties are located in different jurisdictions.

Nicola Meldrum provides guidance on the drafting of cohabitation agreements and the enforceability of such agreements

Although marriages remain the most common type of family unit in the UK, cohabiting couples were the fastest growing family type over the last 20 years. According to the Office for National Statistics, between 1996 and 2016 cohabiting families more than doubled from 1.5 million to 3.3 million, and it is presumed that this does not include the less usual arrangements whereby a group of people pool their finances to get on the property ladder.


Rebecca Harling summarises the approach to privacy in family proceedings and asks whether the current system lacks clarity

Open justice is one of the oldest principles of English law, going back to before the Magna Carta. Jeremy Bentham famously declared that ‘publicity is the very soul of justice’ (Works, Vol 4, 1843). Traditionally the desire for proceedings to be held in the public eye ensured the moral integrity of both the tribunal and truthfulness of any witnesses, but also served to shed light on the legal process and promote a greater public confidence and understanding in the law. In this way justice is not merely being done, but it is being seen to be done.

Matthew Taylor looks at delay in financial proceedings and the more generous approach taken by the court in Briers v Briers

It seems that, much like buses, you wait an age for a delay case and then two come along at once. Hot on the heels of the judgment in the permission to appeal case of Waudby v Aldhouse [2016] came the Court of Appeal decision in Briers v Briers [2017].

Farrer & Co

Caroline Holley examines dependence, independence and variation in the context of joint lives maintenance orders

The high-profile case of W v W [2015], which many saw as the first real movement of the pendulum swinging away from the ‘meal ticket for life’ of joint lives spousal maintenance orders, has seemingly led to a surge in applications by paying spouses to vary or terminate such orders. As readers will remember, in W v W, Pitchford LJ dismissed a former wife’s application for permission to appeal against an order substantially reducing her maintenance. He upheld the view of the judge in the lower court that the former wife should exploit her earning capacity and contribute to her own financial needs.