Latest Flyers

Family Flyer 92

April 22, 2021

The “Matrimonialisation” of Non-Matrimonial Assets

WX v HX and others (Treatment of Matrimonial and Non-Matrimonial Property) (2021) EWHC 241 – Roberts J.

Introduction:

Donald Rumsfeld, the former US Secretary of Defence in interview about a film documentary entitled “The Unknown Known – the Life and Times of Donald Rumsfeld” – himself became confused about what was meant by his own use of the phrase he had famously employed at a news briefing in 2002 concerning the existence of weapons of mass destruction in Iraq. 

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Family Flyer 91

April 22, 2021

MPS applications – Broad Assessment Only

Rattan v Kuwad [2021] EWCA Civ 1

Introduction:

This case of Rattan v Kuwad [2021] EWCA Civ 1 is the first Court of Appeal review of maintenance pending suit in over a decade (see Moore v Moore (2009) EWCA Civ 1427), albeit the decision serves to re-emphasise what hopefully all family law practitioners will already know – a knowledge which appears to have been lost to the Circuit Judge (“CJ”) involved and a good example why the FRC is a welcome replacement of the old judicial ticketed system when dealing with appeals from financial remedy first instance decisions. 

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Family Flyer 90

April 22, 2021

The Impact of FPR 2010 Part 4.6 on Financial Remedy Applications for Permission to Appeal Out of Time

MG v AG (Appeal Out of Time) (2020) EWFC B49

Introduction: The process of an application to proceed out of time – has long been presented in family cases as a review of “all the circumstances”, not least, the merits of the substantive application succeeding. MG v AG now coalescences the CPR and FPR approaches when dealing with such applications in financial remedy cases.

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Family Flyer 89

April 22, 2021

Set Aside Powers – There’s Nothing New Under the Sun

CB v EB – Mostyn J

Introduction:

The formal process required to initiate the Court’s jurisdiction to set aside matrimonial final orders has long been the subject of contentious debate and over complication matched only by an extended discussion at all levels of our judicial system as to the extent of the power itself. In this recent Judgment in CB v EB (2020) EWFC 22 by Mostyn J there has been a determined effort to finalise the position.

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Family Flyer 88

April 22, 2021

Non-Matrimonial Pension Accrual in Low Value Cases.

KM v CV (Pension Apportionment: Needs) [2020] EWFC B22

Introduction:

High Court and Court of Appeal decisions in family financial remedy matters rarely deal with the low income /low asset cases, which most other Courts have to wrestle with on a daily basis. In addition, in many cases involving pensions before the Courts some form of argument is still invariably presented suggesting that where there has been any non-matrimonial accrued pension contribution the same should lead to an apportionment of the pension being undertaken before any division occurs for pension sharing purposes. 

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Family Flyer 87

April 22, 2021

Litigation Misconduct Results in Order Below Guilty Spouse’s “Reasonable Needs”

– an analysis of the Court of Appeal decision in Rothchild v De Souza [2020] EWCA Civ 1215

Introduction

The appeal by the Husband against the financial remedy order of Cohen J was dismissed. The costs of the proceedings (described as being conducted on a “massive scale” and “most destructive”) by the end of the Court of Appeal and a lengthy first instance hearing amounted to over £1m with the Court of Appeal agreeing with W’s counsel’ submission, as already found by Cohen J., that but for H’s litigation misconduct those costs would have been a fraction of that amount.

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Family Flyer 86

October 5, 2020

The Cost of a Failure to Openly Negotiate – an Analysis of Mostyn J’s Judgment in OG v AG [2020] EWFC 52

Facts:

H and W had made cross financial remedy applications upon divorce and these proceedings had been ongoing for almost 2 years. The marriage had lasted 25 years and there were two children (25 &10) who remained living at the UK Fmh with W. The parties had operated a ducting business X worth almost £14m with each taking active roles therein 9 (and as joint shareholders). The parties had also built up a property portfolio both in the UK and abroad and under the name of X received rentals. 

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Family Flyer 85

October 5, 2020

General Approach to and “Due Diligence” responsibilities in Non-Disclosure Set Aside Applications.

Introduction:

1. The “three buses” experience appears uncannily to happen in legal practice just as it does when waiting for overdue public transport home on a wet night. Having not had a case on a set aside application for some time, suddenly during “lock down” three have made such an appearance. As a result I have had to remind myself of the Sharland and Gohil principles, which were the subject of an earlier Flyer in 2015 (Flyer 57 “Sharland and Gohil Summarised”) and then an article published in Family Law (“Concealment in Family Financial Proceedings: A Crime by Any Other Name” (2014) Fam Law 1131). 

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Family Flyer 84

October 5, 2020

Introduction:There appears to have been some recent interest shown in a decision of HHJ Hess in W v H (divorce financial remedies) [2020] EWFC B10 on the basis that the judgment sets out some new principles relating to pension distribution. In fact, it does nothing more than repeat the President’s endorsement as to what should be now the accepted guidance to the judiciary and practitioners following the Pension Advisory Group’s 2019 Pension Report on the approach to pensions in financial remedy cases. 

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Family Flyer 83

October 5, 2020

FAMILY COURTS REMOTE ACCESS PROTOCOL – Northern Circuit

Local Family Practitioners have been experiencing obvious difficulties in understanding the practical arrangements necessary for Court cases in the wake of the Covid-19 crisis and within the last 72 hours there has been a cascade of Guidance and Directives from National and Circuit sources. 

The Family Courts on Circuit will be closed to physical access until further notice. 

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