High Court Judge, Mr Justice Mostyn, has offered guidance in a recent judgment in respect of the approach to be taken to valuation of business assets, special contribution, sharing and pre-marital assets.
The President of the Family Division, Sir James Munby, has called for a “complete de-linking” of divorce and financial claims within the court process. This would mean that they would be dealt with as entirely separately processes, albeit you would still be unable to issue financial remedy proceedings until after divorce proceedings have been issued.
Sir Munby outlined his reasoning as follows:-
- Only a small number of divorces give rise to financial claims;
- Divorce itself is a largely administrative process and judicial involvement has always been limited. By contrast, judicial involvement in financial remedy proceedings is significant;
- Divorce cases are now being dealt with by centralised regional divorce courts;
- Financial remedy proceedings are not the only financial proceedings dealt with by the family courts. There can be claims on overseas divorces under Part III of the Matrimonial and Family Proceedings Act 1984, claims under Schedule 1 Children Act 1989, claims under the Inheritance (Provision for Family and Dependants) Act 1975 and claims under the Trusts of Land and Appointment of Trustees Act 1996.
The wife of a wealthy oil trader has been awarded £453m in a record divorce settlement, once again supporting the theory that London is the “divorce capital of the world”.
The parties met in Moscow in 1989. They were married and moved to London 1993 and had two children. For tax purposes, the 61 year old husband was not resident in the UK and could only spend 90 days per year at their home in London. By contrast, the 44 year old wife obtained UK citizenship early on in the marriage. The parties therefore spent time together in London and at their holiday homes in France and the Maldives.
The husband had numerous affairs throughout the 25 year marriage, even fathering a child to another woman in 2013. The wife also admitted to having affairs but maintained that their marriage had “survived” and that they were still very much a couple throughout, sharing the same bed and enjoying holidays and family outings.
Behaviour is one of the most common grounds for filing for a divorce. Under current national law, section 1 (2) Matrimonial Causes Act 1973, any person wishing to proceed with a divorce without a period of two years’ separation from their spouse must justify this on the grounds of infidelity or ‘unreasonable behaviour’.
Resolution, the national body of family lawyers committed to resolving matrimonial proceedings in as non-confrontational a way as possible, has urged a change in the current law to promote a no fault divorce system. The Court of Appeal last week rejected a wife’s application for a divorce and adopted a strict approach to its limited powers to interfere and review the findings of fact of the judge at the initial hearing on the basis that the judge had correctly applied the current law as laid down by Parliament and was entitled to reach the conclusions as he did. Mrs Owens will apparently appeal to the Supreme Court as last week’s Court of Appeal decision leaves her trapped in a loveless marriage and she will have to wait until 5 years have elapsed from the initial separation date before she can divorce her husband. In effect, this decision will encourage lawyers to set out unreasonable behaviour particulars in greater detail which will cause greater acrimony and will distract attention from what is of greater importance, which is to resolve matters in relation to the children and financial matters in as cost effective and non- confrontational a manner as possible.
Separated parents who “brainwash” their children against the other parent is a form of child abuse, according to the head of CAFCASS (Children and Family Court Advisory and Support Service).
CAFCASS are the primary agency that are involved in family court proceedings in the UK and in some cases, prepare detailed reports about who children should spend time with.
The CAFCASS Chief Executive, Anthony Douglas, has warned against the dangers of what is known as “parental alienation”. Parental alienation is a process whereby one parent will seek to turn a child against the other parent. It can take many forms, such as badmouthing the other parent, belittling them, forbidding discussion about them or even stopping the child from seeing them.
Newcastle Fertility Centre have been granted the first licence to create babies from three people, two women and one man.
The Court of Appeal ruled that heterosexual couples should not be allowed to enter into civil partnerships with each other and that this was only open to same sex couples.
At the moment same sex couples have the option to either enter into a civil partnership or marry. Civil partners rights are protected by the Civil Partnership Act 2004 and civil partners can obtain the same remedies as married partners upon dissolution of a civil partnership.
Katriona MacFarlane, 58, appealed to the Court of Appeal after the judge at first instance awarded her half the net proceeds of sale of the house plus a further £140,000 lump sum. The basis of her appeal was that she sought an increase in her settlement upon the basis that she had abandoned her teaching career to be looked after her millionaire husband, Dr James MacFarlane, aged 74. She claimed that after her divorce she had ended up working as a supply teacher instead of working as a head teacher earning over £100,000 a year with a valuable teacher’s pension. Mrs MacFarlane had been working as an acting head teacher when she met Dr MacFarlane, a semi-retired GP in 2003. She sold her own home in order to buy a half-share in the doctor’s house and asserted that she gave up a promising teaching career whilst still in her 40s, when her new husband assured her that he would look after them both. They enjoyed a lifestyle “substantially better than that of a comfortable middle class couple”.
Court of Appeal judges are currently considering an appeal made by Mrs Tini Owens against an odd decision by Judge Robin Tulson QC at first instance that she was not entitled to a divorce based upon her husband’s unreasonable behaviour, as the allegations raised amounted to a series of relatively trivial matters. The judge ruled that her husband’s constant berating during the marriage was to be “expected in a marriage”.
Tini Owens, 65, claimed that she was imprisoned in a 37 year old marriage with Hugh Owens, 78, after he had defended divorce proceedings.
Whilst the post-Brexit landscape is shrouded in uncertainty, there is one certainty that arises; “Brexit is going to have a huge effect on family law”. Daniel Emes recently made this statement whilst giving evidence on behalf of Resolution at the Justice Committee’s Inquiry on the implications of Brexit on the justice system. Amidst much heated debate surrounding the impact of Brexit, the general tone of evidence given was not conciliatory, not least for family law matters.
Tens of thousands of teenagers across England are suffering neglect at home, according to a new report by The Children’s Society.
The report, Troubled Teens, part of The Children’s Society nationwide research programme, reveals the scale of teenage neglect as reported by young people themselves. The finding show that, on average, the equivalent of three Year 10 pupils in every classroom report some form of parental neglect.
With the rise in court fees and the centralisation of the Family Courts, it is becoming increasingly difficult to access family justice readily and cost effectively. Public Funding, commonly known as Legal Aid, is widely available for family mediation provided that you meet the financial eligibility criteria. This can be obtained at https://www.gov.uk/guidance/civil-legal-aid-means-testing.
In the initial stages of separation, a common question asked of the family lawyer is “Can I change the locks to prevent my ex- partner from coming back into the property?”
According to a recent survey by the Office of National Statistics, the divorce rates continue to decline. In 2014 there were 111,169 divorces in England and Wales, a decrease of 3.1% compared to the year before.
Divorce was at its highest for males aged between 45 and 49 and for women between the ages of 40 and 44.
In all other age groups divorce rates were lower.
The reason for the decline in marriage is probably because more couples are choosing to cohabit instead. Another reason may be the increasing age of those entering into a first marriage.
In 2015, 27.5% of births in England and Wales were to mothers born outside the UK, according to the Office of National Statistics. Most of half of the cases in the Family Division Reports for 2014 involved international issues. Due to increased globalisation and an itinerant population, the family lawyer is frequently faced with considering the client’s position in conflicting legal jurisdictions and needs to protect the client accordingly. Legal systems differ in their respective approaches to the enforceability of pre- nuptial agreements, to the availability of spousal maintenance awards, in their treatment of pre- marital assets, inherited assets and assets acquired post separation, and in their different powers to order financial disclosure.
The jurisdiction in England and Wales is often regarded as most favourable to wives who are able, in some circumstances, to claim maintenance from their spouse which endures beyond termination of the marriage. The decision to award spousal maintenance is a discretionary judicial exercise based upon guidelines set out in Section 25 of the Matrimonial Causes Act 1973 and replicated in the Civil Partnership Act 2004.
As Christmas approaches, the Family Courts are inundated with urgent, last minute applications made by anxious parents and grandparents to see children over the holiday period. Sadly, if mediation does not get off the ground, a court application may be the only option to reinstate regular arrangements for absent parents or grandparents to see children.
A British mother succeeded in her application for an adoption order of a 6 year old Egyptian girl. The girl, who was an orphan at the time, was placed with the mother and her Egyptian husband whilst the mother was living in Egypt.
In July 2013, the mother bought the child to England due to the civil unrest in Egypt and after a period of time, decided to remain in England. The mother soon after contacted her Local Authority and was advised to issue an application for an adoption order and a child arrangements order.
Resolution, the largest organisation of the family lawyers in the UK, has marked the launch of “Good Divorce Week” by unveiling a new Code of Practice.
The Human Fertilization and Embryology Authority (HFEA) who regulate assisted reproduction in the UK, have recently published their annual report which highlights adverse incidents within fertility clinics.
A 14 year old cancer patient, who cannot be named for legal reasons, has been cryogenically frozen in the hope that she can be woken up in hundreds of years.
Mediation is a voluntary process which allows parents the opportunity to come together in the presence of a trained independent mediator, to try to reach an agreement regarding the arrangements for their children, finances, or both, following relationship breakdown.
An increase in the court fee to issue divorce proceedings was implemented in March 2016, increasing the court fee from £410 to £550.
With populations becoming more mobile, it is not uncommon for divorcing couples to have assets based abroad.
There is only one ground for divorce in England and Wales, and that is that the marriage has irretrievably broken down.
A widow in her 40s has been granted the right by the High Court to keep her frozen embryos in storage for 10 years after a dispute with a fertility clinic which had wanted to destroy the embryos after two years, as NHS funding had expired to fund storage costs.
Not seeing your child every day post separation is surely the hardest part of family breakdown.
Child Arbitration- the cost effective and speedier solution to resolve children issues after separation or divorce
The benefits of child arbitration to the parents and the children are manifold:-
With the sharp decline in the availability of legal aid for family proceedings, it has become more of a challenge for those seeking legal advice and representation to fund their legal bills.
A seven year old little boy “living life entirely as a girl” has been removed from his mother’s care after a ruling by Mr Justice Hayden in RJ ( A Minor)  EWHC 2430 (family).
According to National Family Mediation only 1 in 5 separating couples attend a Mediation Information and Assessment Meeting (MIAM) before pursuing divorce proceedings.
It was Lord Bingham in 1994 who said that “delay has long been recognised as the enemy of justice”. Sadly, some 22 years later, we are experiencing more prolonged delays in the family courts than ever before.
In the case of Re F & M (Children) (Thai Surrogacy) (Enduring family relationship)  EWHC 1594 (Fam), the court was asked to grant parental orders to a British couple in respect of twins who had been born in Bangkok to a surrogate mother. The twins had been conceived by IVF at a clinic in Bangkok following a commercial surrogacy agreement between the British couple and the birth mother.
Anyone who has been involved in private children law proceedings in the family court will be familiar with the role of Cafcass. It is an organisation that represents children in family court cases, helps the court ensure that the welfare of children is put first during proceedings and that decisions are taken in their best interests.
What is child maintenance?
Child maintenance is a regular amount of money, usually paid by the non-resident parent to the primary carer of the children. It is to be used to pay for a child’s everyday living costs, such as for food, clothes and helping provide a home.
The Family Justice Council has published guidance on the division of assets on divorce in cases where parties’ needs are greater than the assets available. The guidance provides a useful summary of the law and leading cases in this area:
Christina Estrada, the former supermodel, who took her Saudi billionaire ex-husband to court, has landed an award in a High Court settlement totaling £75m. £53m of that was actually a cash lump sum, which sets a new record, as far as cash awards upon divorce go. Ms Estrada had been seeking £238m but, nevertheless, seemed happy with the award after the ruling last week, when she stated:
In March last year, the Supreme Court allowed Ms Wyatt permission to bring financial claims against her ex husband, Mr Vince, nearly 20 years after their divorce had been made absolute. Our previous article on the Supreme Court decision can be found here: http://www.myerson.co.uk/termination-marriage-not-prevent-ex-spouses-making-financial-claims-future/ . Some years after the divorce, the husband had built up a substantial business enterprise and become very wealthy. He had subsequently remarried but still Ms Wyatt was permitted to pursue financial claims against him.
From July 2016, a new Children Arbitration scheme will be launched which will mean that parents will have an alternative way of resolving disputes about their children. Before now, family law arbitration has only been available to deal with financial matters.
On divorce, it is not uncommon to see one spouse arguing that certain assets are ‘non-marital’ in an attempt to persuade the court that the other spouse should have no share of them. For instance: