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Last updateTue, 24 Feb 2015 5pm

Family Law Journal: October 2015
Withers LLP

Suzanne Todd and Laura Kearns consider the implications of the European Court of Human Rights’ decision in Oliari v Italy

The decision of the European Court of Human Rights (ECtHR) in Oliari v Italy [2015] is the latest in a series of cases concerning same-sex unions. It is in line with a growing acknowledgement across Europe, and worldwide, of the right for same-sex couples to obtain legal recognition of their unions and to be granted the rights and responsibilities that such relationships enjoy.

Switalskis

Andrew Baines examines how coaching can assist clients dealing with relationship breakdown

It was on the Monday when the client sat in front of me with a look of ‘Why on earth do you think you can do anything to help me?’ It was a question I was finding difficult to answer. On the Tuesday she sat in front of me crying; not the best half-hour I’ve spent in my professional life. On the Wednesday we sat in front of the local district judge, the client sat on my right, her former spouse on my left, and the district judge opposite me. All seemed to be asking ‘why on earth do you think you can do anything different?’ I was beginning to get the message.

Zoë Fleetwood reviews the Council of Europe perspective on forced adoption

Earlier this year the Council of Europe produced a report titled: ‘Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States’ (Doc 13730). The report was written by Olga Borzova of the Russian Federation. The report addresses politically and socially sensitive issues such as adoption without parental consent, severing family ties completely, placement decisions based primarily on the passage of time and the removal of children from parental care at birth. These matters have a direct impact on both children’s and their parents’ right to respect for their family life, as well as the right to a fair trial and an effective remedy. In light of this, the report makes a valuable and timely contribution to a pressing social problem.

Deborah Levy analyses the approach to a marital agreement where needs and conduct were in issue

The latest figures from the Office for National Statistics showed that in 2014 the largest percentage of those who divorced were between the ages of 50 to 64. While the older generation are now separating, they still meet new people and with that comes the need and desire to preserve assets they have already built up, coupled with the often-held wish to preserve assets for their respective children.

Hazel Wright and Phoebe Sutton suggest that despite the provisions of section 25 the standard of living of the parties is becoming less relevant

When family lawyers of a certain generation die, they will find engraved on their hearts: ‘the section 25 factors’. For nearly 40 years, we have looked at s25, Matrimonial Causes Act 1973 (MCA 1973) and tried to understand what it means for our divorcing clients, and how to advise on it. The law provides that these factors must be taken into account when advising on a financial settlement on divorce, so that the settlement is fair. We are told that none of the section 25 factors are superior, but that some will have a ‘magnetic quality’ in certain cases (see for example Crossley v Crossley [2008]). We are told both to forego any gloss on it (per White v White [2000]), and to strip our advice back to the statute and to stop over-interpreting it, but at the same time that the law is flexible and must reflect current attitudes in society; ‘fairness is an elusive concept… grounded in social and moral values’ which ‘change from one generation to the next’ (per Miller v Miller; Macfarlane v Macfarlane [2006]).

Richard Adams highlights the need for the law to accommodate less traditional family arrangements in children cases

The past couple of decades have seen a radical transformation to our understanding of the family. The recent decision of HHJ Bellamy, sitting as a deputy High Court judge, in Re A (A Child) [2015], which considered the application of a transgender man, M, for leave to apply for a child arrangements order in respect of a nine-year-old girl, A, illustrates many of the complexities of the modern family and provides useful guidance where such applications for leave need to be considered.

Fiona Wood looks at the need to comply with the Family Procedure Rules 2010 and best practice when instructing experts in financial cases

It is often necessary to instruct experts in financial cases. Usually experts are instructed to value business interests and properties, but they can also be instructed to value more unusual items such as works of art or to provide specialist tax advice in cases with an international element. While expert evidence can be needed to deal with a wide range of issues, the rules which apply to obtaining this evidence are the same. These rules are contained in Part 25 of the Family Procedure Rules 2010 (FPR 2010) and PD 25D. If you follow the rules you should not become unstuck!