Latest Updates
Family Flyer 76
March 17, 2020
FOR THE TIMES THEY ARE A CHANGING’ – THE PRIVATE FDR
Introduction:
1. In February this year I was invited to the offices family lawyers firm, O’Sullivan Davies in Perth, Australia. Having delivered a seminar on ‘The History of and Present Approach to Prenuptials in England and Wales’ to an invited audience of law firms there earlier, I took the opportunity to dine out with James Claringbold, a partner of the firm and who himself had had secondment experience as an overseas lawyer only a few years ago in specialist family Chambers in London.
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Family Flyer 75
March 17, 2020
Extension of term – how exceptional should the gateway to extension be?
Introduction:
1. In a recent speech by Mr Justice Mostyn to the Devon and Somerset Law Society on 16 October 2018 ‘SPOUSAL MAINTENANCE – Where did it come from, where is it now, and where is it going?’, His Lordship has suggested that his guidelines in relation to claims for maintenance as set out in his judgment in SS v SN (Spousal Maintenance) [2014]EWHC 4183 (Fam) had prevailed in tact since:
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Family Flyer 74
December 9, 2018
Ideals in a less than ideal system
The Central Family Court has now issued a directive that family professionals will be expected to draw up non financial orders, if the case is concluded by 1pm, by 4.30 pm that day and, if concluded later that day, then by the start of business the next working day.
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Family Flyer 73
December 9, 2018
Current Position of the Prenuptial Agreement (‘PNA’)
In recent instructions to draft a number of prenuptial agreements, I have provided to the solicitor a Summary of the present developed position concerning the approach to prenuptial agreements. I have been told the Summary was found useful and so I have included the same now as a Flyer to at least provide a quick aide memoire of the up to date law on this subject.
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Family Flyer 72
December 9, 2018
For Discretion read Uncertainty – Mills v Mills [2018] UKSC 38
The Supreme Court’s anticipated decision in the variation of periodical payments case of Mills v Mills was a bit of a damp squid despite commentators predicting a major shift was imminent in regard to maintenance entitlement periods and the basis of future variation of such orders. However, hidden within the Court’s determination are likely to be some future problems for the profession’s ability to advise clients of the Court’s likely approach and outcome to variation applications.
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Family Flyer 71
December 9, 2018
Is an earning capacity a marital asset subject to the sharing principle?
Waggott v Waggott [2018] EWCA Civ 727
Introduction:
The higher courts have over recent years repeatedly emphasised the need for consistency in the application of the established principles of financial remedy distribution on divorce as suggested by both the appellate decisions of White and Miller/McFarlane. Such consistency of principle application undoubtedly assists settlement and results as the Court of Appeal acknowledged in less than 10% of all such financial cases going to a contested hearing.
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Family Law Journal [2018] Fam Law 873
December 1, 2018
Setting aside an order: the service process: Wilmott v Maughan
The parties married in 1991, separated in the 1990s with a decree absolute in 2001. The final financial remedy consent order was in June 2007. By October 2011 W had, in the face of H’s default, started enforcement proceedings under the 2007 consent order which had since continued. H maintained he had been resident in Istanbul working as an air pilot since 2011. Leave to appeal (King LJ) had been granted to H but restricted only to orders relating to W’s enforcement applications made after 1 July 2013.
The relevant procedural history started with an order of Ryder J (as he was then) in January 2012. H had initially applied to set aside or vary all orders in the family proceedings allegedly for fraud, misrepresentation or material non-disclosure and H was recorded as saying he would provide the court with a post office box number in Somerset for service. Ryder J had dismissed H’s application to set aside/vary on the basis that it did not demonstrate even a prima facie case. In November 2012, Ryder J granted W a further order for alternative service when H failed to provide the promised service post office box number. Service was to be deemed if sent by email to one of two specified addresses.
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Family Law Journal [2017] Fam Law 1196
March 10, 2018
A Sharp turn in divorce finance distribution: the cost of principle versus pragmatism
As is well known, a significant number of marriages end in divorce (ONS – 2013 showed 34% of marriages had ended in divorce by the 20th marriage anniversary – albeit the ONS – 2015 found there had been a modest reduction in divorce between opposite couples overall to 101,055 from 111,169 in 2014 – Divorces in England and Wales: 2015, ONS). As such, the risk to married couples of undergoing the trauma and cost of divorce remains significant. A survey undertaken by Resolution in 2014 found 28% of the separated adults taking part had undertaken some form of additional borrowing as a direct result of their relationship break-up (www.resolution.rg.uk/site_content _files/files/reso).
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Indemnities and Consequential Orders – the Avoidance of Sterile and Technical Objections – CH v WH [2017] EWHC 2379: Mostyn J.
March 10, 2018
Introduction:
The courts exercising family jurisdiction have a long tradition of not being constrained by the limits of the specific application placed before the court. A master of the matrimonial law, Lord Justice Ormrod in Ward v Ward & Greene (1980) 1 AER 176 observed, at the end of an appeal in which it had been suggested that the court could not under the (then un-amended) s 24 of the Matrimonial Causes Act 1973 make an order for sale without there also being a pro form summons before the Court under s 17 of the Married Women’s Property Act 1882, as follows:-
‘Before leaving the appeal finally, however, there is one point with which I want to deal… For my part, I have never understood the advantages of multiplying pieces of paper intituled in particular statutes named at the head of the summons.
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Family Law Journal [2017] Fam Law 425
March 10, 2018
Pre-nuptials: The profession’s responsibility
is one of the few senior Circuit specialists outside London with a recognised big money ancillary relief
practice. He is known for his knowledge and ability in this area of the law and his detailed preparation and attention to his brief.
The quality, clarity and cost of pre-nuptial agreements being produced for clients and the varied approaches being adopted to the negotiation process engaged in obtaining the same by some sections of the profession, it is suggested, requires some adjustments to current practice.
INCREASED INTEREST
It remains questionable whether the uptake in instruction in this area of work is truly reflective of a genuine need for such agreements in certain cases and in an increasing minority of cases whether it reflects nothing other than a naked attempt, without legal justification, to control the weaker financial party.
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