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Family Law Journal: October 2011
Withers LLP

Virginia Sherbourne and Vanessa Mitchell look at the lessons to be learnt regarding variation of maintenance from the Court of Appeal decision in N v N

The case of N v N [2011] serves as a useful reminder to practitioners, not only of the principles surrounding variation of maintenance (and the circumstances in which a term/nominal maintenance should or should not apply), but also the perils of dealing with litigants in person.

Jessica Craigs takes a topical look at privacy, phone hacking and computer misuse

It was with morbid fascination that I listened to a radio programme discussing the merits of a website offering extra-marital affairs. The speaker (a subscriber to the website and embarking on her third affair) described how her marriage was somewhat stale and, while she didn’t want to leave her husband, she wanted some ‘spice’ back in her life.

Melanie Barnes and James Pirrie set out the case for private child maintenance agreements and less state intervention

The government, in support of its stated aims of decreasing child poverty and reducing costs to the state, is now actively promoting family-based arrangements, otherwise known as private agreements. This has resulted in support for collaborative individual agreements from the Child Maintenance and Enforcement Commission (CMEC), and proposals for new regulations recommending the implementation of collection charges in order to make applications to the Child Support Agency (CSA) less attractive. However, despite the encouragement to enter into private agreements, there is no structure in place to support parents through the negotiation process, no means to register the obligation and no methods of enforcement to ensure compliance. Indeed, despite the apparent moves towards supporting individually negotiated agreements, CMEC seems to insist that such agreements are, of their nature, unenforceable even with the Court of Appeal’s indication in Darke v Strout [2003] that private maintenance agreements will often be ordinary contracts.

Karen Eckstein and Frances Bailey highlight the impact of tax planning on financial provision

The saying is that there are only two certainties in life: death and taxes; save that in fact there are a whole host of tax planning schemes seeking to help the wealthy avoid, where possible, the latter. These may be put in place following the sale of business interests that would otherwise generate substantial capital gains tax bills. In other circumstances, high earners look to structure their affairs so as to offset their income against investment losses to lessen their liability to income tax. Some taxpayers enter into schemes knowing that success is uncertain, but wishing to defer payment of tax, thereby gaining a cash flow advantage.

Philippa Cunniff compares Scottish law with family law in England and Wales

At a time when minds are focused on the harmonisation of laws across Europe, it can be easy to overlook the fact that even within the UK, the laws relating to financial provision on divorce or dissolution of civil partnerships are very different. The ‘first come, first served’ rules under Brussels II do not apply to intra-UK cases, which are dealt with under the Domicile and Matrimonial Proceedings Act 1973. This can result in a mandatory stay of proceedings in one UK jurisdiction, if the parties last lived together as husband and wife in another part of the UK. There is therefore limited opportunity for forum shopping unless one party has taken deliberate steps to ensure that the necessary requirements have been met to ensure that jurisdiction rests with the part of the UK that suits that party best. It is nevertheless worthwhile being aware of the very significant differences that exist between the systems of England and Wales on the one hand and Scotland on the other.


Joanna Kay outlines the regulatory framework and potential pitfalls when advising on surrogacies

There was uproar surrounding the first commercial surrogacy in Britain 26 years ago. Ever since then the subject has remained controversial and continues to provoke strong views. These views are exemplified by media coverage from the ‘rent-a-womb’ industry in India, to last year’s story (that caused a flurry of activity on the internet) about a 72-year-old grandmother and her 26-year-old biological grandson choosing to have a baby through surrogacy. Actors Sarah Jessica Parker and Matthew Broderick conceived twins through surrogacy and, more recently, Faith Margaret Kidman Urban, born through a surrogate, was welcomed into the world by parents Nicole Kidman and Keith Urban. Surrogacy has been, and will no doubt continue to be, discussed after the law change, which came into force in April 2010, allowing unmarried and same-sex couples to apply for parental orders. Since then, Sir Elton John and David Furnish, who entered into a surrogacy arrangement, have celebrated the birth of their baby son Zachary.

Andrew Meehan considers the court’s approach to applications under Schedule 1 to the Children Act 1989

The case of DE v AB [2010] illustrates the lengths to which the courts will go, under Schedule 1 to the Children Act 1989 (ChA 1989), to financially protect children born to unmarried parents.