Last updateTue, 24 Feb 2015 5pm

Family Law Journal: November 2014

Andrew Baines considers the principles that underpin the choice between litigation and non-court dispute resolution methods

Court proceedings provide one way of resolving disputes but accessing this service involves complying with certain requirements. The service is not free, it is paid for in part by society through taxes and in part by the payment of court fees. However payment of the court fee alone doesn’t give access to the court services: in litigation he who pays the piper does not call the tune. A litigant agrees to comply with the rules and regulations of the court, even though those rules and regulations can be arcane and inaccessible to the average litigant. This is important because once within the court system a party can’t get out without permission, and if they fail to comply the outcome may be as extreme as imprisonment.


James Brown suggests that Schedule 1 to the Children Act 1989 is underused and looks at the courts’ approach

Family law practitioners are not awash with cases dealing with Schedule 1 to the Children Act 1989 (ChA 1989). Such claims are still relatively rare and, with case law involving mainly high-net-worth individuals, giving advice in this area can be tricky. This provision could aptly be renamed the schedule of disappointment: all too often the payer feels that they have an unreasonable financial burden to bear and conversely a payee can also be disappointed by the outcome, particularly if the claim is being made at the end of a long cohabiting relationship. But with more and more children being born outside marriage, this is an area of the law that must not be forgotten as an option to bridge the gap between what would be available had the parties been married and the relatively limited financial support available through the Child Maintenance Service.

Anna Heenan looks at changes to the Inheritance (Provision for Family and Dependants) Act 1975 and the potential use of nuptial agreements

Family lawyers tend to worry about the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) when it comes to making an application for decree absolute or consideration of a clean break in a financial consent order; however, family lawyers potentially have a wider role to play in I(PFD)A 1975 claims. One of the most common situations where I(PFD)A 1975 claims arise is where the deceased had remarried and there are competing claims on the estate by the children of a first marriage and also the new spouse. Pre-nuptial and post-nuptial agreements have the potential to assist in pre-empting and defending claims by a spouse in this situation.

In the conclusion to a two-part analysis, Debbie Stringer discusses the more paternalistic approach that may be taken by the courts when considering a child’s capacity

The first part of this consideration of a child’s capacity to make decisions, ie Gillick competence, examined the test applied by the courts and the decision in Re A (A Child) [2014] (‘Maturity Test’, FLJ140). This concluding part will consider the different approach taken in X (a child) [2014], why so few cases come before the courts, and the courts’ approach where a child is not considered to be competent as to decision making.

Richard Adams examines the factors that may justify an unequal division of assets

Practitioners will be familiar with the strong feelings that many clients have when it comes to their respective contributions to the marriage and whether there should be any departure from equality as a result. The recent decision by Moor J in SK v TK [2013] provides a useful reminder of the approach the court will take when considering such arguments, particularly in relation to special contributions, pre-acquired assets and risk.

In the first of a two-part back-to-basics guide Jane Booth explores the types of lump sum order that may be made, together with drafting tips and practice points

On divorce, dissolution, nullity or judicial separation, the court has jurisdiction to order one party to pay a lump sum for the benefit of their spouse or a child as specified pursuant to ss23(1)(c), 31(7A)-(7F), Matrimonial Causes Act 1973 (MCA 1973) and Sch 5 to the Civil Partnership Act 2004.

Rachel Wilmott highlights the courts’ approach when dealing with financial conduct and litigation conduct

The decision in US v SR [2014] addresses at length the law on notional reattribution and the burden of proof regarding non-disclosure of assets. Much of the judgment is fact-specific however it serves as a useful reminder of the applicable principles regarding allegations of financial misconduct and the rules of evidence on the drawing of adverse inferences.