Last updateTue, 24 Feb 2015 5pm

Family Law Journal: November 2015

Alison Bull examines the rise of mediation in the family justice system and the market challenges facing family lawyers

In Prest v Petrodel Resources Ltd [2013] Lord Sumption said ‘courts exercising family jurisdiction do not occupy a desert island’. It is an observation that is particularly thought-provoking as we look at the current state of the family justice system, and the place lawyers occupy within it. It emphasises a point that has not been fully addressed by many in the legal profession: that the system is not immune to changes brought about by fundamental factors such as market deregulation and rationalisation, the effect of three recessions within 20 years and new models of business-ownership.

Nicky Howarth and Hayley Trim look at whether an application for specific performance is appropriate on an interim agreement

Family lawyers will be familiar with the principle that agreements reached in relation to financial remedy claims are not enforceable as contracts. In Xydhias v Xydhias [1998] Thorpe LJ confirmed that the compromise of a financial remedy application does not give rise to a legally enforceable contract and neither party can sue for specific performance of it. Such an agreement will only become enforceable once it has been converted into an order of the court. The point that has been reiterated in more recent cases such as Sharland v Sharland [2014] is that although any agreement reached will weigh heavily with the court, that does not alter the court’s duty to consider all the circumstances of the case and its power to make a different order to achieve fairness. When the court embodies terms agreed between parties in a consent order, the legal effect of those terms is derived from the order itself rather than the parties’ agreement.

Peter Singfield and Jessica Pitt outline criminal legislation applicable to revenge porn and other remedies available to family lawyers

Domestic abuse and all its facets are no longer restricted to the privacy of a couple’s own home. Mobile technology and the internet have proliferated the myriad ways through which someone can be harassed or abused during, and after, the breakdown of a relationship, from the dissemination of private material to the use of technology to access private data and monitor activities.

Jennifer Lee sets out the courts’ approach when considering a barring order under s91(14) of the Children Act 1989

Section 91(14) of the Children Act 1989 (ChA 1989) empowers the court, when disposing of an application under ChA 1989, to make an order that prevents further future applications for an order under ChA 1989 of any specified kind being made by the parties named in the order without leave of the court. The relevant provision reads as follows:

Rachel Willmott considers the remedies available to cohabitants as to the transfer of a tenancy and the consequences of provision for liberty to apply

The decision in Guerroudj v Rymarczyk [2015] addressed the law in relation to a former cohabiting couple who were living in local authority housing under a secure tenancy. The tenancy was in their joint names and the question was who, on separation, the tenancy should be transferred to. The appellant was represented throughout the proceedings in contrast to the respondent who, for the majority of the proceedings, acted as a litigant in person, albeit she had support from a McKenzie friend.

Joanne Hall summarises the courts’ approach to post-separation growth in assets and the diverging views of the judiciary

If the title of this article sounds like a Star Trek episode, it is intentional. Family law is undoubtedly in a state of change and travelling into unknown territory. We are on the one hand on a voyage of discovery to the destination of what is ‘fair’, in these socially and technologically changing times, and on the other looking to what has gone before for guidance.

Kate Elliott analyses when an undertaking may be varied and the importance of finality in financial orders

In Birch v Birch [2015] the Court of Appeal dismissed a wife’s second appeal against a refusal to vary an undertaking in a consent order. The case was concerned with a consent order entered into by the parties on 26 July 2010. The order followed a structure that will be familiar to many practitioners, which was as follows: