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Family Law Journal: September 2016

Naomi Rainey compares the different judicial approaches to the evidential burden on an application for a judgment summons

The decision in Migliaccio v Migliaccio [2016] follows a stream of Court of Appeal and High Court authorities that have sought to establish a persuasive presumption on a judgment summons application.

Mark Pawlowski highlights some of the pitfalls associated with mutual wills that may have consequences on relationship breakdown

Mutual wills arise where two parties (usually husband and wife) make identical wills, pursuant to a legally binding agreement, in each other’s favour on terms that the survivor will not revoke their will without the consent of the other. Revocation will normally give rise to a claim for breach of contract during the joint lives of the parties. However, where one party has died, and the survivor revokes their will, the estate of the deceased can no longer maintain an action for breach of contract. In that scenario, an equitable constructive trust for the benefit of those entitled under the deceased’s estate is imposed on the survivor from the time of the other party’s death, in order to prevent an equitable fraud. A fraud would arise if the survivor goes back on the mutual agreement and seeks to take the benefit of the property in a way that is inconsistent with the agreement that it was to be dealt with in a particular way for the benefit of the ultimate beneficiary; see, for example, Charles v Fraser [2010].


Daniel Sanders considers the courts’ approach to variation applications and the limited circumstances in which such an application is likely to succeed

For many clients a concluded financial settlement by consent, or following a final order of the court, marks closure in relation to the main issues surrounding the breakdown of their marriage; such settlement or final order is often considered to provide certainty for the parties. A final order is therefore, to all intents and purposes, akin to the last page of their marriage book. Certainty of closure may very well be the case in many instances where, save for the intricacies of implementation, or a potential court review of certain lump sum or settlement of property orders for example, there is a relatively immediate or foreseeable clean break. However, the focus of this article is on opening the door, which has remained ajar, by virtue of income claims being left open in a financial settlement order: that is to say, the bringing of variation proceedings – as a sequel of sorts – to the original settlement.

Che Meakins reports on the courts’ discretion when considering the parties’ circumstances as a whole, and the importance of understanding the intention behind an order

In Mutch v Mutch [2016] the court was concerned with an appeal by the wife against the setting aside of an order that extended the term of her spousal maintenance. The Court of Appeal’s decision serves as a reminder that:

Hart Brown

Vanessa McMurtrie examines the lessons to be learnt from the outcome in the long-running case of Wyatt v Vince

If ever there was a good example of why divorcees of modest means should agree a clean-break dismissal of, at the very least, their capital claims, Wyatt v Vince [2016] is it. It took the parties five years to sort out their outstanding claims, some 32 years after they separated. The legal bill for the wife is believed to be significant. The husband fought the matter out of principle, and could afford to throw money at the case. But what can we learn from this relatively unusual case, and pass on to our ordinary-wealth clients?

Richard Adams looks at recent developments regarding birth registration and declarations of parentage

Birth registration performs many functions, from providing evidence of the history and identity of children, to providing parents with rights and responsibilities arising from both the birth of the child and subsequent registration. This article will examine the current approach to birth registration and, in the light of case law relating to declarations of parentage, re-registration of births and the legislative scheme, where it may need to move on to reflect the reality of the modern family.

Anne-Marie Hamer investigates the potential reform of surrogacy law, and how such reforms may be guided by experiences in other countries

The gap between the law relating to surrogacy and the realities faced by the parties in such cases was highlighted by the president of the Family Division, Sir James Munby, in In the matter of Z (A Child) (No 2) [2016], when he made a declaration of incompatibility with the Human Rights Act 1998. The question is, what is to be done about it?