Decree Absolute: Divorce & Cohabitation in the UK
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Family Law Week: Financial Remedy Update May 2020

Family Law Week: Financial Remedy Update May 2020 | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > Articles Financial Remedy Update May 2020 Sue Brookes, Principal Associate, Mills & Reeve LLP analyses the news and case law relating to financial remedies and divorce during April 2019. Sue Brookes, Principal Associate, Mills & Reeve LLP As usual, this updated is provided in two parts: News Coronavirus guidance continues to dominate.  Over the past month, we have seen: • Mr Justice MacDonald release the fourth version of "The Remote Family Court" • The Legal Aid Agency has updated its guidance • Guidance on how to submit an appeal •  the President of the Family Division considering the appropriateness of remote hearings • Guidance as to the impact coronavirus is having on those at risk of domestic abuse • Two rapid consultations on the impact of coronavirus on the justice system (the family justice consultation has already closed but the civil justice consultation is open until 15 May 2020) • Data released by HMCTS on the use of audio and video technology which shows: o since 7 April, 85-90% of cases have been heard remotely o video technology is used in about one-third of cases o audio technology is used in about two-thirds of cases o face to face hearings have decreased to around 400 • Guidance for intermediaries • An interactive heatmap from the Law Society which shows which courts are operational (or not) • Guidance from the judiciary on how cases will be allocated for a remote hearing and then further guidance from Mr Justice Mostyn and HHJ Hess on how financial remedy cases will be dealt with. • A new pilot Practice Direction 36Q (pilot provision: modification of Practice Direction 12B: coronavirus) and amendments to other existing practice directions.  From 23 April 2020: o PD 12B (child arrangements programme) has been modified to provide that local practices and initiatives can be operated differently in relation to applications for child arrangements orders during the coronavirus pandemic. The purpose is to ensure that applications can be started and progressed, and orders can be made, varied and discharged.  o PD17A (statements of truth) has been amended to provide that, where a form is referred to in PD 5A or is completed or generated online under Part 41 and allows for an electronic signature, references in PD 17A to a statement of truth being signed should be read to include an electronic signature. Electronic signatures can be a tick box, a printed name, an image of a signature or a digital signature generated by commercial software, appearing next to the statement of truth. o From 30 April 2020, amendments to PD 12G (communication of information) and PD 14E (communication of information relating to proceedings) enable disclosure of information from family proceedings held in private to the Welsh Language Commissioner (WLC), without this disclosure being a potential contempt of court. In other news: • The Domestic Abuse Bill received its second reading on 28 April 2020.  It has now gone to a Public Bill Committee who will scrutinise the Bill line by line.  The Committee is scheduled to report by 25 June 2020. • The Civil Legal Aid (Procedure) (Amendment) Regulations 2020, which will come into force on 15 May 2020, expand the types of evidence of domestic violence which may support an application for civil legal aid. • Marriage rates for opposite-sex couples in 2017 were the lowest on record.  In total, there were 242,842 marriages in England and Wales in 2017, a decrease of 2.8% from 2016.   Less than a quarter (22%) of all marriages in 2017 were religious ceremonies, the lowest percentage on record. • The Magistrates Association has responded to the FPRC consultation on legal bloggers emphasising that given the importance of greater transparency to improve the public's understanding of and confidence in the family justice system, and subject to safeguards, accredited legal bloggers should be allowed to attend family hearings. • Minutes from the FPRC's March and April 2020 meetings have been published: o we can expect revised Form H and Form H1 as a result of amendments to r.9.27 FPR 2010 which will come into force on 6 July 2020 o the Enforcement Working Group has proposed amendments to Part 33 FPR 2010 o we can expect a closer look to be taken at the service of pension sharing orders on pension scheme trustees Cases AW v AH [2020] EWFC 22 This case involved the former wife (W) applying for orders in respect of financial remedies pursuant to the Matrimonial Causes Act 1973, together with consequential declaratory relief. The first respondent was the former husband (H). The second respondent, BB, was a friend and business associate of H's who is based outside the jurisdiction in Hong Kong and who held shares in the third respondent, C Limited ("C Ltd"), a company registered in Hong Kong, in 2008, which owned various other companies as set out in the judgment. W argued that BB is H's nominee and that the beneficial interest in C Ltd and its corporate subsidiary holdings belonged in reality to H. The parties had begun living together in 1998, married in 2001 and separated in 2011. In May 1998, shortly after they began living together, H had sold a business he had spent years building up for £86million. The parties then had ten years of unbridled expenditure and a wholly lavish lifestyle, mostly funded from capital. H continued to make investments, many of which were high risk. He borrowed from close friends and business acquaintances, as well as from banks to be able to do so. Unfortunately he lost substantial amounts of money and by 2008 he was in serious financial difficulties. He then filed for his own bankruptcy in 2011, shortly after the parties' separated, by that stage owing at least £33m to unsecured creditors. After separation, W moved to Monaco, encouraged and assisted by H to do so, and both parties benefitted from her tax free status. W trusted H to rebuild his fortunes and she initially continued to support him in his business dealings, as she had done during the marriage, by allowing various investments to be made by him and held in her name. The parties initially reached a separation agreement, which included a provision that the legal title of a French property, which H had previously gifted beneficially to W, would be transferred to W within 5 years, failing which the various other terms of the agreement would no longer apply. That property had to be sold and so the agreement did not stand, but it remained relevant to the extent that it reflected that H was clearly intending to be able to recover financially. Following his bankruptcy, he continued to invest, including in spread betting and other high risk investments, presumably with this intention. The judgment sets out what the court knew about H's financial dealings, but Roberts J made clear that H's covert tactics, including his use of corporate nominee holdings, made it very difficult for anyone to establish to what resources H actually had resource at the time of the hearing. The judge accepted H's evidence that he had previously disclosed everything in terms of his legal ownership to his trustee in bankruptcy. However, she made clear that, for the purposes of determining what are described as "financial resources" under s25 Matrimonial Causes Act 1973, the Family Court is engaged in a different exercise in considering the underlying reality of beneficial entitlement which is a more nuanced approach to the black-letter of insolvency law. There must be an element of fact-finding to determine who in reality is entitled to, or has had the benefit of, funds or income. On the evidence available, the court (and W) had to accept there were very limited assets. W therefore accepted that, even if the court could draw adverse inferences against H, the best she could seek in practice was an adjournment of her lump sum and property claims and declaratory relief in respect of H's beneficial ownership in any residual value in various companies. Roberts J found there was ample evidence that H remains in operational control of the relevant companies following the transfer of their legal ownership to C Ltd. She also found that H had operated his financial affairs to W's detriment, including his forays into spread-betting at a time when he knew, or ought to have known, that his finances were increasingly precarious. He has also appropriated funds which he had previously gifted to W, in a way which was unforgiveable and a serious dereliction of H's duty of full, frank and complete disclosure. However, despite the duty on the court to achieve a clean break wherever possible, the court could not achieve a fair outcome in this case other than by adjourning W's claims and awarding her nominal periodical payments on a joint lives basis. Following Mostyn J in Haskell v Haskell [2020] EWFC 9, and Quan v Bray & Others [2018] EWHC 3558 (Fam), it would be wholly unfair to leave W with nothing, or next to nothing, where H's own evidence was that there was at least the possibility that he would improve his finances in the future to a level where he could provide both him and W with a modest home and the means to sustain a reasonable standard of living. The adjournment was not open–ended and the judge ordered that all of W's claims would stand dismissed in 7 years' time, if by then H did not have the means to meet such an award. He would then be aged 70. H was left with a relatively modest pension, but he would be unable to draw on the fund without notifying W of his intention to do so and seeking the court's permission. H's other pension was transferred in full to W. Robert's J made the declarations sought by W in relation to H's beneficial ownership in the various companies and that a substantial debt in W's name is the responsibility of H because it was part of the structure H put in place in anticipation of his likely bankruptcy. H also had to pay 60% of W's costs because, whilst W did not succeed in identifying hidden assets or any means of H funding an immediate substantive settlement, H was guilty of litigation misconduct which should be reflected by a costs order in W's favour. The court was satisfied that W had taken all reasonable steps to try to settle the litigation. Given the state of H's disclosure, and the lack of coherent narrative to support his many hundreds of pages of paper disclosure, W had no alternative other than to proceed with the forensic enquiry carried out by her legal team over the 10 day hearing. This has led the court to adjourn her claims as W requested, and to that extent, W had been successful. Roberts J did not order costs on an indemnity basis to give H some incentive to restore his financial position and W had borrowed from friends to fund her legal fees, at least one of whom accepted she may not get the money back. She summarily assessed the costs and initially ordered H the sum of £327,000 out of total costs of £545,000. H subsequently sought clarification of this figure in light of a previous LSPO order and he also sought permission to appeal. Roberts J then reduced this figure by £34,500 in light of the further submissions from both parties and declined H permission to appeal. Maughan v Wilmot [2020] EWHC 885 This was the latest instalment in a long running case and follows the judgment of Mostyn J given last October [2019] EWHC 2765. An initial freezing order to protect the sum of £400,000 had been made by Bodey J back in 2013, which H had subsequently breached. At the last hearing, Mostyn J had ordered H to pay W's costs and those of a receiver, including both incurred and anticipated costs, totalling c.£68,000 and he granted a freezing order in the sum of £100,000 to allow some headroom for inevitably future litigation. However, in doing so he had been misled by the husband (H) about the true scale of H's unencumbered liquid funds. H's solicitor-advocate had told the court that H's pensions were worth over £350,000 and, whilst may have been literally true, subsequent investigations revealed the funds were not easily realisable. Had Mostyn J known the truth, he would have made a freezing order in a materially larger amount to allow for the inevitable costs in achieving access to the funds. Further significant costs had already been incurred by both W and the receiver since the last hearing, whilst they tried to establish the true facts, and they anticipated further significant costs would be incurred as a result of H refusing to co-operate with accessing the funds in practice. It was estimated that a total of £95,648 would be incurred as a result of the misrepresentations made to the court at the last hearing. Mostyn J confirmed all these additional costs had been reasonably incurred and should be paid by H. Shortly before the hearing, H's solicitor-advocate filed a statement making various arguments on behalf of H, without adducing any new evidence. Mostyn J rejected these latest arguments. H was already the subject of a Civil Restraint Order and could not seek any positive relief without permission of the court, which would require a separate application under FPR PD 4B paras 4.2 and 4.4 – 4.6. This also applied to H seeking permission to appeal the latest order. H was required to pay costs on an indemnity basis as a result of his litigation misconduct. W v H (divorce financial remedies) [2020] EWFC B10 This is HHJ Hess's judgment at a final hearing in a financial remedy case between a husband aged 50 (H) and wife aged 48 (W). They had three children aged 18, 16 and 10. They had been married since 2005 with 6 years' cohabitation and they separated in 2016 with W filing divorce proceedings that year. Decree absolute had not yet been granted. It was a broadly equal relationship in terms of contributions.  H now earned £144,000 per year with a significant bonus.  W had given up work to bring up the children and, whilst she had since started her own business, now had the much lower earning capacity as a result. The judge found that she could expect to increase her earning capacity over the next 17 years and, whilst it was too speculative to say what she would earn, she could be expected to set her sights higher than the income she was currently earning. The family home was worth £730,000 but had equity of only £241,782 and there were no other realisable assets. Each party had debts of over £50,000. The key assets were undoubtedly their pensions. W had a defined benefit scheme with a CE of £139,000 and a small defined contribution scheme. H had a defined contribution scheme worth £59,000 and a defined benefit scheme with a CE of £2,155,475. In his judgment, the judge worked through section 25 Matrimonial Causes Act 1973, focussing in most detail on sub-section (h), the value to each of the parties to the marriage of any benefit which that party will lose by reason of the dissolution of the marriage. Reminding himself of the principle that fairness and equality usually ride hand in hand and that this applies to pensions, as much as to any other asset, he considered the following three issues: • Should the court should target equality of capital or equal incomes? • Should the court exclude a portion of a pension if it was earned prior to marriage or seamless cohabitation? • To what extent should the court disaggregate the pensions and order pension sharing as opposed to offsetting pensions with other assets? He also considered A Guide to the Treatment of Pensions on Divorce: The Pension Advisory Group Report (July 2019). There is no one size fits all in response to the first question. Examples where you may divide the CE include where the CEs are relatively small, where the parties are relatively young or where the future income producing qualities of the pensions are likely to be speculative or unreliable. However, simple divisions of the CE may be unfair where the pensions are medium or large, where there is a defined benefit scheme and income within the scheme is likely to be higher than the annuity income outside the scheme and where the parties are closer to retirement. In this case, taking into account the ages of the parties and the size of the pensions compared to the non-pension assets, the fair and equal outcome would be to equalise pension incomes. In relation to the second question, H was arguing that only 58.3% of his pension should be included in the calculations and the court should ignore the "non-matrimonial" accrual calculated on a straight-line basis. It is easy to identify pension as non-matrimonial property where it is wholly accrued prior to the relationship and pension funds are rarely subject to the mingling which can occur with cash assets. Excluding pre-acquired pension may therefore be a legitimate exercise in some cases, although the court retains an element of discretion in respect of sharing. However, the judge found that this approach, whilst widely adopted in practice, carries significant risks. The straight-line methodology, though simpler and easier to apply in practice, conceals an unfairness in cases such as this one, where a member spouse starts work on a lower income and rises to a high paid director during the relationship. Furthermore, where the pension is the main resource for meeting the parties' needs in retirement and there is not a surplus over needs, it is difficult to see that excluding any pension can be justified. As per the PAG report, given the life-time allowance, even a "big" pension case will usually be a needs-case and it is normally non-pension assets which will take a case out of the needs bracket. In relation to the third issue, following Martin Dye v Martin-Dye [2006] 2 FLR 901, the orthodox view is that pensions should be dealt with as separate assets. Whilst many litigants choose to blur the lines between the categories and offset to a greater or lesser extent, that does risk unfairness as valuation issues become very difficult. In this case, the judge adopted the recommendations of the actuary, which were accepted by the parties, and made an order on the basis of equalisation of income at age 60. Concluding that this was a needs case, the proper and fair approach was to equalise income taking into account all pensions including any pre-acquired. However, he accepted H's argument that, rather than allowing an offset to give W all of the equity in the house as she had sought, he should treat the assets separately and divide the equity in the property equally to give H some liquid cash and there would be no offset. H had agreed to W and the children remaining in the house until 2024 and a Mesher order was therefore made on those terms. Finally the judge considered W's arguments for a global maintenance and H's arguments that maintenance should continue until 2024 and made a top up order (as there was already a maximum CMS assessment in place) and ordered separate spousal maintenance for a term up to W's 60th birthday, at which point her claims were to be dismissed with a s28(1A) bar on the basis that she could rely on her pension. Padero-Mernagh v Mernagh (divorce – nullity – remote hearing) [2020] EWFC 27 The wife (W) applied for divorce in July 2018 in relation to a marriage certified to have taken place in the Philippines in 2005. The husband (H) filed his acknowledgment of service and a defence stating the marriage was bigamous as W remained married to another man and the marriage ceremony had failed to comply with Philippine law. H therefore cross-petitioned for nullity. The matter was listed for a final hearing before Williams J in November 2019, but he adjourned the hearing and made directions because the case was clearly not ready for final determination. The recital to that order listed the questions which needed to be answered and the order was then sent to the Queen's Proctor who was asked to address the questions asked. The parties were both litigants in person and had limited means and the judge therefore also provided for the Queen's Proctor to apply for further directions in relation to expert evidence on the law of the Philippines, on the basis that the parties would be unable to deal with this.  There was then a delay with the Queen's Proctor before the Attorney General's office confirmed that the Queen's Proctor had been instructed to make submissions as directed but not to address the question of expert evidence on the law of the Philippines. The hearing proceeded remotely by way of Skype as a result of the Covid-19 pandemic. The judgment sets out the directions/ground rules made by the judge at the start of the hearing. It then goes on to summarise the parties' respective positions and the legal framework. The judge reached conclusions based on the balance of probabilities, with the burden of proof lying with the person who asserted a fact. The burden of proof was on W to establish that there was a valid marriage capable of being dissolved by divorce, assisted by the presumption of formal validity. The burden of proof also lay on H to prove on the balance of probabilities that W was already lawfully married and/or that the marriage was invalid for procedural irregularity. Working through the available evidence, the judge was satisfied that W had been lawfully married to her first husband in 1994 and that her marriage subsisted up to the parties' ceremony. The fact that W may have believed records of her first marriage no longer existed, did not affect the fact that she remained lawfully married. The judge therefore concluded that the parties' marriage was not valid under Philippine law (based on the limited evidence that had been submitted by the parties), regardless of what H's understanding about W's first marriage might have been at the time, and it was not therefore a marriage that could be recognised in English law. It could not be the subject of a divorce but it could be subject to a decree of nullity pursuant to s11 Matrimonial Causes Act 1973. There were other irregularities with the marriage certificate, including the place of marriage being wrongly recorded, but that would not have been enough to invalidate the marriage under the local law – it was the fact that W was already married to someone else which was the issue. H had only challenged the divorce in response to W's claim for financial relief, reflecting his misunderstanding of the law in this area. The court was less than impressed with H's concession that he regretted having challenged it because he had subsequently realised that he could bring a claim against W for financial relief. Had the evidence established that H had knowingly entered a bigamous marriage, his manipulative stance in relation to the granting of a divorce may have been sufficient reason on public policy grounds to decline to grant a decree of nullity. Neither party emerged from the proceedings with much credit. H won on the issue of nullity but his litigation conduct was such that it may have justified a costs order being made against him. Whilst the court could order the parties to pay the Queen's Proctor's costs, the costs were incurred at the court's request and both parties were of limited means, so the court made no order as to costs as well as dismissing the application for a decree of divorce and granting H's application for a decree of nullity.
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Love During Lockdown: Cohabitation Rights

Love During Lockdown: Cohabitation Rights | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Cohabiting Couples - Legal Rights In England, there is no such thing as ‘common law marriage’. Whilst there has been much debating and campaigning for cohabiting couple’s legal rights to be enhanced, there is currently no consensus about how to achieve such an enhancement fairly, as people share homes for a variety of reasons. The legal rights of a cohabitating couple are fewer than those for a married couple. Therefore, if a cohabiting couple in England seeks greater legal rights than those relayed below, they would need to either marry or enter into a civil partnership. It is because of the fewer rights afforded to cohabiting couples that the ownership and occupation rights of a property, which they may both call their home, are often the main cause for dispute between cohabitating couples after the relationship has broken down.  Also, neither cohabitee has any right to claim financial support from the other (although financial support can be claimed for the children of the relationship). Property rights for Cohabiting Couples Upon separation the starting point for all ‘property’ (i.e. all assets) remains the sole property of the partner in whose name it is held. If a partner does not own assets in his/her sole name, they have no entitlement to any share of the property and potentially no right to stay in that property even if it is the family home. However, in some situations it might be possible for the non-owning partner to make an application to the court to claim they have a ‘beneficial interest’ in the home. A beneficial interest is a right which the non-owning partner sometimes acquires over the property. Beneficial interests often arise from contributions the non-owning partner has made financially, or by virtue of reliance on a promise from the owning spouse that owing to their actions they will be entitled to such an interest.  In these circumstances, that partner’s entitlement may secure the following: Acquiring a right to live in the property   Receiving a share of the proceeds when the property is being sold   Receiving a percentage share of the property; or   Receiving compensation in lieu of ownership rights in the form of a capital payment   However, applications to try to prove a beneficial interest are not easy and to succeed they require evidence of a nature often not retained or as a result in verbal promises. The type of evidence to support such applications to prove beneficial entitlement includes: Bank statements, invoices or solicitor’s letters showing a financial contribution towards a mortgage or a structural/renovation works to the property   Evidence of certain actions only being taken by the non-owning partner because promises had been made to them by the owning partner (e.g. for continuing rights of occupation or a legal share of the property). This evidence is sometimes found in social media messages or other forms of correspondence between the couple at around the time such assurances were given; or   ·       Evidence of selling a property owned or part owned by one party to enable the couple to live together in one household.    This type of application to the court can be costly, take time and emotion bringing with it a period of uncertainly. Outcomes can be very hard to predict, and where possible, agreements should be made to avoid an application to the court. Cohabitation Agreements In the hope of avoiding the need for litigation, cohabitees should consider entering into a Cohabitation Agreement. Ideally these are made prior to the parties living together but they can be made at any time during the relationship. A Cohabitation Agreement (also referred to as a Relationship or Living Together Agreement) records (1) the arrangements applicable while partners are living together and (2) what is to happen if the relationship comes to an end. The main issues usually covered in such an agreement may include the following: How the home(s) shared by the couple is to be divided   How jointly acquired assets are to be divided (personal assets, gifts passing between the couple and from family members are usually retained by the party owning them)   Who pays bills, mortgage or rent   How joint accounts will be divided   How to account for any payments a non-owning partner makes towards a property belonging to another   Child maintenance and school fees (if applicable).   The above list is not exhaustive so all matters relevant to the cohabiting couple should be discussed and recorded before they live together permanently.  Review of Cohabitation Agreements If a couple move abroad, research must be undertaken in respect of how their legal rights as cohabitees might alter upon moving to that country as agreements may not be recognised in other countries. Adjustments to the agreement might therefore be needed to be drafted with the advice from a specialist family lawyer practicing in the country to which a couple is moving.  If a cohabiting couple subsequently marry or enter into a Civil Partnership the division of assets (even if owned by one party) is protected by law and their legal ownership can be adjusted. Additional rights include rights of occupation of the home and claims for spousal or civil partnership maintenance. However, prior to entering into a marriage or civil partnership a pre-nuptial or pre-civil partnership agreement can be entered into to seek to protect the ownership of assets and even within a marriage or civil partnership, it is possible to protect the legal rights of a spouse or civil partner by entering into a formal Post-nuptial or Post-civil Partnership Agreement. An existing Cohabitation Agreement may be a good starting basis for preparing a formal pre-nuptial agreement created in anticipation of marriage,  but the closer a Pre-nuptial Agreement is to the date of the wedding the less weight will be attached to it upon divorce. The advice is to plan in good time and seek legal advice Separation Agreements If a cohabiting couple has not entered into a Cohabitation Agreement and decide to separate permanently, they may consider entering into a Separation Agreement to deal with their future as individuals. A Separation Agreement will usually be used by a couple if they wish to make future (long or short term) financial provision for each other. It will therefore record how the property and finances will be divided as well as arrangements for any children. A properly drafted Separation Agreement made in these circumstances will avoid one party seeking the costly intervention of the court to determine the division of the assets of the relationship.
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UK divorces must continue with remote hearings after coronavirus, say lawyers

UK divorces must continue with remote hearings after coronavirus, say lawyers | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk. Spotlight Children and Same Sex Families Children and Same Sex Families: A Legal Handbook More info View All A day in the life Of... Edward Bennett Barrister Read on UK divorces must continue with remote hearings after coronavirus, say lawyers Date:23 APR 2020 Use of remote hearings by audio and video link must continue in UK courts after the coronavirus outbreak ends in order to clear up the troubling backlog that has plagued the UK family courts over the last decade. To comply with social distancing orders, 85% of all court hearings in England & Wales are now being held remotely. 1,850 audio hearings took place on April 6, up from just 100 on March 19*. Hearings in which video technology was used increased from 150 to 1,100 in the same period. Only around 500 hearings are still being heard in person each day. The increased efficiency of remote hearings would help clear the growing backlog in the UK courts. Data from the Family Court, for example, shows that the average time taken to complete a divorce with a financial settlement reached a record 34.4 weeks in the fourth quarter of 2019. This represents a jump of almost ten weeks from an average of 24.8 weeks in the same quarter just two years earlier. Article continues below... Cohabitation This work provides commentary, checklists,... £105.99 View product Family Law Awards 2020 Entries now open! View product Family Court Practice, The Order the 2020 edition due out in May £589.99 View product Graham Coy, Family Partner at Wilsons, says that the Ministry of Justice should look at allocating cases to be heard remotely at courts across the UK, to spread the burden move evenly. “It’s clear that after just a few weeks into the use of remote hearings, the system has already proved itself. Using this sort of technology is something that the courts should have embraced years ago – and should continue to embrace once coronavirus lockdown ends. Video hearings will cut costs, speed up the process. Many people have given up on using the UK court system because it takes too long. For a lot of cases, in-person hearings simply aren’t necessary. Just in the last two weeks there have been many complex family law cases which have been successfully resolved, despite parties and their legal teams being spread across the country. Once the outbreak is over, the judicial system should continue to use this technology to expand court capacity. This would be a great way of bringing our court system into the 21st century, and reversing the marked decline in efficiency that we have seen in recent years. Courts that are operating under capacity could easily be used to hear cases from other parts of the country. This could considerably reduce the strain on overburdened courts.” Categories: News Related Articles Authors: Simon Bruce Jack Verdan 15 APR 2020 20 APR 2020 Authors: Kara Swift 21 APR 2020
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S v H [2020] EWFC B16

S v H [2020] EWFC B16 | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
A judgment in financial remedy proceedings. The marriage had lasted six and a half years. The wife had sought the full range of financial relief in her application, but, the husband being bankrupt, the case she in fact ran was to seek a dismissal of all claims by both parties, and rely upon a prenuptial agreement which provided for a separation of property. The husband sought a lump sum of £739,000, sufficient to discharge his bankruptcy, provide for his living expenses and purchase a three-bedroomed house. In HHJ Booth's judgment, there was no value in the prenuptial agreement. There was no formal disclosure, and no legal advice given to either party. This was a needs case. Section 25 of the Matrimonial Causes Act 1973, as amended, required him to have regard to all the circumstances of the case. He ordered a transfer of 60% of the wife's pension, and payment of a lump sum of £270,000 to discharge the husband's bankruptcy and pay his legal fees. A fund of money would be provided for the husband to buy a house in his name, subject to a trust in favour of the wife, allowing her to recover the capital advance at such time as the husband no longer needed that home. Judgment, published: 27/04/2020 Topics Share
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Family Law Week: Financial Remedies and Moving/ Selling a Property in the COVID pandemic

Family Law Week: Financial Remedies and Moving/ Selling a Property in the COVID pandemic | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > Articles Financial Remedies and Moving/ Selling a Property in the COVID pandemic Maria Scotland, barrister, 5SAH and Rosalind Fitzgerald, associate solicitor, Bindmans selling consider the issues regarding selling properties and moving home in the current health crisis. Maria Scotland, barrister, 5SAH and Rosalind Fitzgerald, associate solicitor, Bindmans One of the largest capital assets, if not the main capital asset in most financial applications ancillary to a divorce in the UK is the family home and other buy-to-let or holiday properties. Post-Brexit and the General Election, the property market appeared to be stronger. However, selling a property to release (and share) this capital in the current health crisis poses a huge issue and the question is what a property is now worth and when/ how it can be sold. This article seeks to explore some of these issues – Is there even a property market at the moment? Mark Hayward, CEO of NAEA Propertymark (National Association of Estate Agents), hosted a webinar on Rightmove's website on 2 April 2020 indicating that Rightmove are still seeing millions of property searches on their website every week and receiving thousands of enquiries. He attributed this to the fact that there are still a lot of people with a huge interest in property. His view is that these people fall into two categories – (i) those who would like to move (day dreamers) and (ii) those who have to move (and will buy/move), for reasons including divorce. He advised that people are doing their homework during the lockdown: looking and planning so that the moment the stay at home rules are lifted they will be able to move quickly. The housing market is expected to see a massive spike in activity once the stay at home rules are lifted. As such the guidance, so far as estate agents are concerned, is that there is still mileage in placing a property on the market, leaving it on the market and/or looking for a new property to move to upon a divorce. A selling/ purchasing party cannot undertake any viewings in person during the crisis but many estate agents now offer virtual tours using computer technology and so people can still virtually view a property and be in a position to make an offer and move as soon as the stay at home rules are lifted. Other groundwork can also be done remotely such as the EPC, the searches, obtaining a mortgage and valuing the property (lenders can do an automatic valuation online) and exchange of contracts. It is completion that is made difficult by the stay at home rules. Can either parties complete on a sale and move at the moment (during the time of the current stay at home rules/ curfew)? The government has issued guidance on moving home during the health pandemic. It is here. It says the following: "We urge parties involved in home moving to adapt and be flexible to alter their usual processes. There is no need to pull out of transactions, but we all need to ensure we are following guidance to stay at home and away from others at all times, including the specific measures for those who are presenting symptoms, self-isolating or shielding. Prioritising the health of individuals and the public must be the priority. Where the property being moved into is vacant, then you can continue with this transaction although you should follow the guidance on home removals. Where the property is currently occupied, we encourage all parties to do all they can to amicably agree alternative dates to move, for a time when it is likely that stay-at-home measures against coronavirus (COVID-19) will no longer be in place." The guidance is therefore, where possible, to delay selling/moving while measures are in place to fight coronavirus. If contracts have already been exchanged and the property is currently occupied, then all parties are advised to work together to agree to delay matters (for contractual reasons). The government guidance does not require agents and parties to stop completing on a property purchase but to be flexible unless the move is critical. Properties/ situations where a move may well be possible and be compliant with the rules to stay safe include – - If the property is unoccupied - If the property is a newbuild (again unoccupied). The greater risks arise where completion of sale and the prospective move of home are into a previously occupied property (due to the risks of transmission of COVID-19). The Law Society guidance to conveyancing solicitors is that there is nothing to prevent its members completing on a sale where both parties to the transaction are willing so long as PHE guidance is followed and the properties are not occupied with cases of COVID-19 or suspected cases nor are the occupants self-isolating at the date of completion and all parties abide by social distancing during the move. This is of course easier where the move is into an unoccupied or new property. It would be advisable otherwise to sanitise the property prior to moving in. It would be worth a buyer considering having the property subjected to a professional deep clean before moving in. The government has given some advice, as follows – • Wear disposable or washing-up gloves and aprons. These should be double-bagged, then stored securely for 72 hours then thrown away in the regular rubbish after cleaning is finished, • Using a disposable cloth, first clean hard surfaces with warm soapy water. Then disinfect these surfaces with cleaning products. Pay particular attention to frequently touched areas and surfaces, such as bathrooms, grab-rails in corridors and stairwells and door handles, • If an area has been heavily contaminated, such as with visible bodily fluids, from a person with coronavirus (COVID-19), consider using protection for the eyes, mouth and nose, as well as wearing gloves and an apron, • Wash hands regularly with soap and water for 20 seconds, and after removing gloves, aprons and other protection used while cleaning. What is a "critical" move? The caveat to the government guidance is where parties have already exchanged contracts and the move is "critical". "A critical move" is not defined but is being interpreted as transactions where one party has to move due to work, family or health reasons (including vulnerability). No body (whether the government, Police or the Law Society) is policing the completion of sales so responsibility for deciding whether a sale is critical is subjective and down to personal judgment.   What if a party's move is in a chain? The responsibility for whether a property sale completes therefore falls to the parties to the transaction and the conveyancer – to ensure that if the transaction completes it is done safely. If one party wants to withdraw or delay from a transaction, this usually has a domino effect down the chain and therefore a great deal of communication and flexibility is required. The key is tolerance, patience and communication. What about removal companies (to move a party)? The British Association of Removals ("BARS") has set out that they will not provide lorries or movers during the pandemic. BARS says its members have to touch an average of 700 items during a house move, which poses a health risk to each removal person. This leaves people who are moving (those who consider the move to be critical) to self-move or find a removal company who are not a member of BARS, which should be done with caution. What about mortgage offers? The usual mortgage in principle offer expires after six months, which may pose an issue if completion is delayed. However, UK mortgage lenders and building societies have given their commitment to extend existing mortgage offers for three months from their current expiry dates where clients have already exchanged contracts on the same mortgage rate as the original mortgage offer. This allows the chain to delay completion whilst moving home is difficult, and after the government advice that moves should be delayed where possible. That said, it is a concern that the Lloyds Banking Group and Barclays have now temporarily pulled many of their mortgage offers from the market unless the customer has a deposit of at least 40 per cent of the value of the property. The lender may also ask for updated proof of income at the date of completion which again may be problematic if the borrower's circumstances have changed and they have not worked during the stay at home rules or not worked at the same level of remuneration, and if so this will be subject to the lender's discretion. What if we need to delay implementation of a financial remedy order? Given the issues highlighted above, parties who are currently implementing financial remedy orders may need to agree extensions to dates for sales, transfer of property and payments of lump sum funded by mortgage offers yet to be obtained. Courts will almost certainly grant coronavirus related requests for extensions to deadlines. HCMTS have confirmed that there are no application fees to apply for a coronavirus related adjournment of a hearing. Whilst no such relief has been granted with regards to application fees for requests for extension to a court deadline, it is certainly worth asking the court to waive the fee if the request is coronavirus related.    Are valuations worth the paper they are written on? A more fundamental question is the impact of the pandemic on valuations of property and assumptions of value obtained prior to the crisis. For cases in proceedings or in discussions as to settlement, there will be understandable nervousness about relying on recent valuations. Where valuations and housing need assessments are critical to settling needs cases, parties may be advised to take a wait and see approach. Can we settle cases at all based on current valuations? As always in financial remedies, this depends on the attitude to risk for those involved. Is a final order or agreement undermined by the current uncertainty? There has been much discussion amongst financial remedy practitioners as to whether the current crisis could constitute a Barder event. In other words, if a case has recently settled on the basis of an assumption as to valuation, and the property market has collapsed, is this a new event which could invalidate the basis upon which the order was made and allow it to be revisited? In Myerson v Myerson [2009] EWCA Civ 282 the 2008 financial crisis and the massive consequential collapse in the value of the husband's shareholding did not amount to a Barder event and the court found that "the natural processes of price fluctuation whether in houses, shares or any other property, and however dramatic do not satisfy the Barder test". At present it is too early to tell what the long-term impact will be on house prices because of the difficulties in valuing property in a market which is effectively on hold. There is an argument that the worldwide pandemic and completely unprecedented shut down of business and housing market could not have been foreseen as a "natural price fluctuation" and it seems likely that it will be worthwhile for at least some practitioners to argue the case for a Barder appeal. Whether or not such arguments will be successful is as unpredictable as the global pandemic itself and the long-term impact on the economy and house prices generally.  Summary Selling properties and moving home, like all areas of life, have been made problematic by the health crisis with the inevitable impact on financial applications in divorce. Parties are being urged by the courts and tribunals to consider arbitration and mediation in all financial remedy cases.  Early communication between parties and flexibility is key.
Tyhisia Thompson's curator insight, June 9, 8:51 PM
During the pandemic many people appear to be buying homes. The real estate market has become flexible and innovative with home buying strategies and guidelines from the government. Online virtual tours are provided where homes are occupied. If the home is vacant, then physical tours are acceptable. Sellers/buyers are also asked to be flexible with closing dates. All in all the process may be a little delayed but the market has not slowed down. 
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Webinar: How has the Covid crisis affected pensions on divorce?

Webinar: How has the Covid crisis affected pensions on divorce? | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Join Rhys Taylor, Barrister at 36 Family & 30 Park Place; Mena Ruparel, specialist family law solicitor and arbitrator; and George Mathieson, Mathieson Consulting Ltd to discuss how the Coronavirus crisis has affected pensions on divorce. The speakers will cover: How has the Covid crisis affected pensions on divorce? What does it mean for pension sharing? What does it mean for pension offsetting? Can I still rely on the pension report? Delay caused by lockdown Recent pension caselaw The Speakers Rhys Taylor Rhys Taylor is a barrister, arbitrator and mediator at 36 Family and 30 Park Place. He specialises in financial remedy and TOLATA/cohabitation cases. He is a Bencher of the Inner Temple and a member of the Bar Council ADR panel. He was a member of the Pension Advisory Group, co-author of Pensions on Divorce: A Practitioner's Handbook (3 rd edition, 2018) and a contributor to Resolution's "Cohabitation Claims" (2 nd edition, 2019) and Class's @eGlance. He has published numerous articles on family and property law and lectured the Judicial College on pensions on divorce. Rhys also conducts private FDRs. Rhys is commended in the Legal 500 and Chambers directories. Mena Ruparel Mena is a specialist family law solicitor and arbitrator with a portfolio career. She regularly writes, examines and trains on family law subjects. Mena is the co-author of the Unbundling Family Legal Services Toolkit, the author of the Matrimonial Finance Toolkit (2017) and the Matrimonial Finance Handbook (2020) published by the Law Society. Mena is also the editor of the Cilex family law manuals (levels 3 and 6) and supported distance learning materials. Mena will become co-chair of the Law Society family committee in September 2020; she is the Law Society representative on the Pension Advisory Group. George Mathieson George has been involved in the field of pensions and divorce for 15 years, but for the past 12 years it has been his sole business interest, having established Mathieson Consulting Ltd for this purpose. He has acted as SJE in over 4,000 cases, and as a party expert in many others.  Perhaps rather worryingly, an increasing number of his instructions are in cases where he is asked to help solicitors who are being sued for professional negligence in historic divorce cases involving pensions. George has lectured extensively on the subject, and had many articles published. He was a founding member of the Multi-Disciplinary Pension Advisory Group, under the joint Chairmanship of Mr Justice Francis and HHJ Hess, which sought ways to improve and make more consistent, the treatment of pensions in divorce proceedings. When? Tuesday 5th May, 1pm-2pm Where? Any device with sound and broadband REGISTER HERE
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Court unable to make declaration regarding existence of Nigerian marriage

Court unable to make declaration regarding existence of Nigerian marriage | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
The recent case Ogunware v Ogunware asks a coiurt to makea judgement on something that it simply does not have the power to do.
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Family Lore: Divorce reform in ‘freeze-frame’ mode, says campaigning family charity

Family Lore: Divorce reform in ‘freeze-frame’ mode, says campaigning family charity | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Musings of an English family lawyer.
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Non-disclosing husband fails in challenge to Court of Appeal

Non-disclosing husband fails in challenge to Court of Appeal | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk. Spotlight Children and Same Sex Families Children and Same Sex Families: A Legal Handbook More info View All A day in the life Of... Louisa Gothard Senior Solicitor, Head of Family Law Read on Non-disclosing husband fails in challenge to Court of Appeal Date:10 SEP 2019 A husband who failed to disclose all of his assets has failed in his appeal to set aside an order. Mr Moher appealed a financial remedy order made in May 2018 on the grounds that he should not have to pay periodical payments to his wife until a Jewish Get, the Hebrew word for a divorce document, was granted. Mr Moher also claimed the judge erred by failing to quantify the extent of the husband’s non-disclosure and the calculation of the lump sum awarded to Mrs Moher was wrong and that the lump sum was far more than she needed. The Court of Appeal has now dismissed the husband’s grounds of appeal and has ordered Mr Moher to continue periodical payments to Mrs Moher until he grants her a Get. It was determined that the Court should try to assess the extent of the financial resources of the non-disclosing party but this does not mean the Court must put a specific figure or bracket on the value of the non-disclosed assets, as sometimes this will be impossible. The Court of Appeal has also made the important confirmation that in Jewish cases the court has jurisdiction to make orders for maintenance payments to wives pending obtaining a Get. Since a Jewish marriage is entered into by a legal contract between a man and woman, it can only be terminated by a legal document ending that original contract. In Jewish practice, only a rabbinical court can dissolve a marriage between a married couple. The Court also decided that there was a compelling need for a "clean break" between the parties so that they would be able to make "new lives". This was based on the manner in which the husband had behaved, including that he had been convicted for assault and harassment of the wife. Article continues below... International Trust and Divorce Litigation Third Edition Indispensable practical guide for offshore... £159.99 View product Pensions on Divorce Explains in an accessible fashion one of the most... View product Unlocking Matrimonial Assets on Divorce A practical and user friendly guide to the more... £85.99 View product The case is a warning for all those who fail to disclose their assets and who try to circumvent the divorce process may end up paying the price, says Alexandra Goldrein: 'In this case Mr Moher tried to get away with not declaring all of his assets to the court, and the Court of Appeal rightly ruled in Mrs Moher’s favour. Our team handled a similar case in Hart v Hart where the husband refused to disclose all of his assets. In that case, he was eventually sent to prison for serious contempt of court, sending a clear message that once made, orders must be complied with. As regards Mr Moher’s non-disclosure in relation to the finances, this case is a further reminder that those who engage in litigation misconduct and who fail to provide full and frank financial disclosure during matrimonial proceedings may ultimately suffer the consequences.  This decision to allow periodical payments to continue until a decree absolute is granted (which will not be granted until a Get is given) provides wives with further protection against recalcitrant men who refuse to provide their wives with a Get, which is vital to ensure the financially weaker party is provided for. Categories: News Related Articles Authors: Matthias Mueller 1 JUN 2016 Authors: James Copson 25 JUL 2019 15 AUG 2019 Authors: Suzanne Briggs 30 AUG 2019
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Family Law Week: Proportion of population who are married continues to decline

Family Law Week: Proportion of population who are married continues to decline | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > News Proportion of population who are married continues to decline The proportion of the population aged 16 years and over in England and Wales who are married continued to decline in 2018 (the most recent year for which numbers are available) to 50.5 per cent, down from 51.0 per cent in 2017. This figure includes opposite sex and same-sex marriages. The figures have been released by the Office for National Statistics. Whilst the proportion of the population under age 70 years who are married has declined, the proportion aged 70 years and over who are married has increased from 50.3 per cent in 2008 to 55.8 per cent in 2018. The number of people aged 16 years and over who are single and have never married has continued to increase, rising by 369,000 from 2017, to a total of 16.7 million people (35.0 per cent) in 2018. The number of people aged 16 years and over who live with a partner and have never married has continued to increase, rising by 1.3 million people since 2008, to a total of 5.0 million (10.4 per cent) in 2018. Edward Morgan, Centre for Ageing and Demography, Office for National Statistics, commented: "In England and Wales, around half of the population aged 16 years and over were married in 2018. The proportion of people married has been in decline over the last decade, while the single population has been increasing. However, those in their 70s and beyond are seeing a different trend where, despite a modest rise in the divorced population, the proportion of people aged 70 years and over who are married has been increasing at a greater rate." For the latest statistics, click here. 15/9/19   Keywords:marriage
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Family Law Week: Moher v Moher: Non-disclosure leads to closure

Family Law Week: Moher v Moher: Non-disclosure leads to closure | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
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Family Law Week: M v P [2019] EWFC 14 (22 March 2019)

Family Law Week: M v P [2019] EWFC 14 (22 March 2019) | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > Judgments M v P [2019] EWFC 14 (22 March 2019) Judgment of Sir James Munby (Sitting as a Judge of the High Court) in a case concerning an application by the Queen’s Proctor to set aside a decree nisi of divorce granted in the Willesden County Court in 2013. The decree was made absolute on 24th February 2014. Both M (the husband) and P (the wife) then went on to re-marry relying on the validity of their decrees. Some two years later, clerical and judicial errors were discovered that brought into question the validity of the judicial process by which the divorce had been granted. The Queen's Proctor subsequently asserted that both decrees were void - nullities – by reason of non-compliance with section 1(2)(d) of the Matrimonial Causes Act 1973. The matter came before Sir James Munby for determination on 22nd March 2019.      Background The parties married on 19th September 2011and separated almost immediately afterwards. M's petition relied on the ground of irretrievable breakdown of the marriage, on the factual basis that the parties had lived apart for two years following the breakdown of the marriage. In fact, the petition was issued on 26 July 2013 some two months before the 2-year period had elapsed. This irregularity was not picked up at any stage by either the clerical staff or the two District Judges who dealt with the matter prior to the decree absolute being pronounced. The irregularity was eventually noticed on 12 October 2016, apparently during a routine review process, and the parties were contacted as a matter of urgency. A hearing took place before a District Judge on 18 January 2017 at which the petition was amended to rely on P's 'behaviour' as the factual basis of the marital breakdown and an order made determining that the February 2014 decrees remained valid, as did M's subsequent marriage to a Brazilian national. The matter was referred, with others, to the Queen's Proctor and subsequently to Sir James Munby. Argument The Queen's Proctor relied upon the case of Butler v Butler (Queen's Proctor intervening) [1991] FLR 114 in which the court had found that, pursuant to s.3 MCA 1973, by operation of statute, a petition presented before the expiration of one year from the date of the marriage was null and void, and a court had not jurisdiction to entertain it. The Queen's Proctor submitted that there was no reason for distinguishing the instant case from Butler, notwithstanding that it concerned section 1(2)(d) of MCA 1973 rather than section 3, arguing that the divorce petition in this case was also non-compliant with statute because the parties had not met the essential requirement of living apart for a continuous period of at least two years immediately preceding the presentation of the petition. It followed, therefore, that the petition was contrary to the statutory scheme, the court had no jurisdiction to grant either decree nisi or decree absolute and accordingly both decrees were null and void. Leading Counsel representing P (pro bono), argued that this case could be distinguished from those cases where the defect went to the lack of jurisdiction of the court as: i. With respect to petitions pursuant to s.1(2)(d), the court did have jurisdiction to receive the petition, which contained the essential assertion that "..that the marriage has broken down irretrievably" and therefore to grant the decree on that ground. The error in correctly identifying the relevant "fact" to evidence the breakdown of the marriage did not go to jurisdiction and made the decrees voidable rather than void; ii. Further, that unreasonable behaviour on the part of the respondent, another fact to support the ground of irretrievable breakdown of the marriage, existed at the date of the original petition and the relevant evidence to support that fact was actually set out in Part 6 of the petition. Thus the defect in the petition was curable by the petitioner simply putting a cross in the correct box in Part 5. In these circumstances, the decrees were voidable, rather than void. Void or Voidable? After making an extensive review of the jurisprudence in this area, including with respect to circumstances where the court either did or did not have jurisdiction to entertain a petition, Sir James Munby identified the central issue as being whether the decrees were a nullity and accordingly void, or merely voidable. He drew three general conclusions: i. A general lack of appetite in the case law to find that the consequences of 'irregularity' is that a decree is void rather than voidable; ii. A general recognition that only if the decree is held to be voidable, and not void, will the court be able to do justice to all those whose interests are affected and having regard to the particular circumstances of each case; and iii. Recognition of the public interest, where matters of personal status are concerned, in not disturbing the apparent status quo flowing from the decree and the certainty which normally attaches to it. The court then considered the effect on M and P, coming to the clear conclusion that the decrees obtained by them, whilst subject to "irregularities" were voidable, not void. That decision was within the court's discretion. The rationale is set out in the following 11 points: 1. That there is no previous case directly in point. The case turns on the statutory provisions linguistically different from those in previous leading cases such as Butler and Manchanda v Manchanda [1995]2 FLR 590; 2. The court would lean against holding the decrees void unless driven to that conclusion by the language of the relevant statute; 3. The court needed to ask itself whether Parliament could really have intended that the consequences here should be that the decrees are a nullity and void. Given the impact and injustice of taking that course on M and P and their new spouses, particularly in Brazil where bigamy is a very serious matter, he did not think so; 4. Non-compliance with the statute is not in itself determinative; 5. Both the relevant statute itself and case law indicated that the consequence of non-compliance with the statute is not that the decree is void but rather that it is voidable; 6. Both the statutory context and the structure and language of section 1(2) MCA 1973 are markedly different from the context, structure and language of section 9(2) MCA 1973; 7. Unlike the situation in Butler, the court did have jurisdiction to entertain the petition as it was clear that there was no non-compliance with section 3; 8. The petition correctly pleaded the only relevant ground, namely that "the marriage had broken down irretrievably"; 9. The error in correctly identifying the relevant fact did not prevent the court entertaining the petitioner's subsequent application for a decree. The District Judge's error was an inadvertent failure to observe a statutory provision – section 1(2) on MCA 1973 – against the exercise of it; 10. There was another fact in existence at the date of the petition which if properly pleaded – by an amendment of the petition- would undoubtedly have justified the court granting a decree nisi and thereafter making the decree absolute; 11. In the present case the evidence to establish that fact was actually set out in Part 6 of the petition, the defect being that the cross had been put in the wrong box – a defect that was simply curable by putting the cross in the correct box. The court "had to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failures by the court itself, entered into in complete good faith and in reliance upon the court's own orders…". Conclusion 1. The decree nisi and the decree absolute are voidable, not void; 2. Neither decree would be set aside – ie the decree absolute remained valid and in force; 3. The decree nisi should be varied in accordance with FPR 2010 rule 4.1(6) with effect from 18 January 2017. Postscript 1. The order of 28 February 2019 pursuant to section 1(4) of the Judicial Proceedings (regulation of Reports) Act 1926 permitting unrestricted reporting of the proceedings, save that M and P should not be identified, to be continued indefinitely. 2. The situation where the wife (P) had been unable to obtain LAA funding for representation in this complex matter was both unprincipled and unconscionable, particularly where the matter was brought to court due to the mistakes of the State, the court system and specifically by judges. 3. This was not a situation where correction by way of 'the slip rule' would be appropriate. Summary by Dianne Martin, barrister, St John's Chambers, Bristol. For the full judgment click here
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How has the Covid crisis affected pensions on divorce?

How has the Covid crisis affected pensions on divorce? | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Join Rhys Taylor, Barrister, 36 Family & 30 Park Place; Matthew Richardson, Barrister, Coram Chambers; and George Mathieson, Mathieson Consulting Ltd as they discuss the effect Covid-19 is having in relation to pensions on divorce. - How has the Covid crisis affected pensions on divorce? - What does it mean for pension sharing? - What does it mean for pension offsetting? - Can I still rely on the pension report? - Delay caused by lockdown - Recent pension caselaw
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The difference between Decree Nisi and Decree Absolute

The difference between Decree Nisi and Decree Absolute | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Decree Nisi is a certificate that says the court agrees you can divorce and Decree Absolute is the final order to legally end your marriage.
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Contrary to popular belief, divorce is actually down during lockdown - and here's why

Contrary to popular belief, divorce is actually down during lockdown - and here's why | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Lockdown with your spouse may be stressful, but far fewer UK couples are pursuing divorce, even though it's possible to do so over Zoom.
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Family Law Week: Maughan v Wilmot [2020] EWHC 885 (Fam)

Family Law Week: Maughan v Wilmot [2020] EWHC 885 (Fam) | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > Judgments Maughan v Wilmot [2020] EWHC 885 (Fam) After Mostyn J gave judgment on this matter in October 2019, it transpired that he had been misled and that the majority of the money which had been frozen in 2019 was not easily accessible. Mostyn J therefore made a further freezing order and made further costs orders in favour of the wife and the receiver, to cover the costs of their investigations and of the implementation of the costs orders. These proceedings had been running for a long time, and after giving judgment in October 2019 (neutral citation: [2019] EWHC 2765 (Fam)), Mostyn J hoped they would come to an end. However, investigations revealed that the factual footings on which he had given his 2019 judgment were faulty. He therefore conducted another hearing, by Zoom, in April 2020 to try to get to the bottom of matters. The history of the litigation was as follows: • In December 2013 an initial freezing order against the husband was made by Bodey J. It froze £400,000, unencumbered, and extended to funds at Aegon. It was implicit in the order that if the husband made a disposition of his assets, he would have to give notice of that fact and explain how his remaining unencumbered assets exceeded £400,000. (The figure was later reduced by Mostyn J to £300,000.) • In June 2015 the husband moved £740,980 from Aegon to Curtis Banks (which offered a flexible drawdown facility). This was not notified by the husband to the wife and the funds left behind were largely inaccessible. • In September 2015 there was a hearing before Mostyn J, who was informed that the husband had moved £700,000 from Aegon to Curtis Banks. • In October 2015 the husband wrote to Curtis Banks informing them that the monies transferred to Curtis Banks were not subject to any freezing order. This was not true as the inaccessible funds left at Aegon would not qualify as unencumbered because they were incumbered by their inaccessibility. • Substantial sums were then withdrawn from Curtis Banks in the husband's favour. This was not known to either the wife or to the receiver. • In March 2016, Mostyn J made an order prohibiting Curtis Banks from paying any funds received from Aegon to the husband or any other party, apart from in accordance with the order. • The husband continued to make withdrawals from Curtis Banks after Mostyn J's order of March 2016. The sums removed from Curtis Banks by the husband were in breach of the original freezing order inasmuch as he had not demonstrated that he had left the sum frozen unencumbered. In addition, the removals after March 2016 were in breach of the March 2016 order. In October 2019 Mostyn J made costs orders in favour of the wife and the receiver totalling £68,307. He froze £100,000 to allow some headroom for inevitable future litigation. He did not specify over which assets the freezing order should range, but intended that it would be directed first and foremost to the funds held by Aegon. This was based on an assurance given by Stephen Meachem, the solicitor-advocate representing the husband, that the pension funds held in both Curtis Banks and Aegon/Hargreaves Lansdown were worth in excess of £350,000 and that the orders therefore only needed to be directed to Aegon/Hargreaves Lansdown and to Curtis Banks. It was implicit in the assurance that there were substantial funds in both places. However, subsequent investigations revealed that although there were funds in Aegon/Hargreaves Lansdown worth £370,000, these were not easily realisable and only £25,369 could be easily extracted. The balance could not be accessed unless it was transferred to a flexible drawdown product offered by another provider, which would require the consent and cooperation of the husband. This would plainly not be given. Further, the funds in Curtis Banks would have been easily accessible, but had fallen to only £93. It was therefore clear that Mostyn J had been misled about the scale and liquidity of the funds held by both Aegon/Hargreaves Lansdown and Curtis Banks. Had Mostyn J known the truth, he would have made a freezing order in a materially larger amount to allow for the inevitable costs in achieving access to the remaining funds held in Aegon/Hargreaves Lansdown. In the course of the investigations by the wife and the receiver to try to establish the true facts, substantial costs had been incurred. Since October 2019, the wife had incurred £43,529, the husband £9,737, and the receiver £27,944 (less £1,443 on client account). The receiver estimated that a further £25,620 would be incurred in implementing the costs orders against the Aegon funds, on the basis that the husband would refuse to cooperate in their transfer to a flexible drawdown product. A total of £95,648 had therefore been incurred or was likely to be incurred in costs as a direct result of misrepresentations made to Mostyn J in October 2019. Mostyn J was of the opinion that the costs incurred by the wife and the receiver since October 2019 had all been reasonably incurred and should be paid by the husband, in addition to the costs it was ordered he should pay in October 2019. This came to a total of £137,746, and did not include the costs of the receiver's own work, which he was also entitled to charge and recover under the receivership order. Further headroom was required in anticipation of more vexatious litigation misconduct by the husband. Mostyn J therefore froze £200,000, and directed the order primarily at Aegon. Just 37 minutes before the hearing was scheduled to begin on Zoom, Mr Meachem produced a witness statement made by him. This sought to argue that the husband was not in breach of the original freezing order because at all times his total 'unencumbered' funds remained above the capped limit, and that because the freezing order did not distinguish between liquid and illiquid assets, the existence of the inaccessible Aegon funds satisfied the terms of the freezing orders. Mostyn J rejected these arguments. It was clear that the husband had been in breach of the original freezing order and of his order of March 2016. Mr Meachem also made three claims for positive relief. Given that the husband was the subject of a Civil Restraint Order and needed permission to make any application to the court, Mostyn J refused to hear any arguments in respect of these claims. Following the distribution of his judgment in draft form, Mostyn J received an email from Mr Meachem challenging the quantum of costs claimed by the wife and the receiver. Mostyn J rejected this challenge.  Given the misconduct of the husband, Mostyn J considered that any assessment of costs must be on the indemnity basis. On a summary assessment this meant that any doubts as to any sum claimed should be resolved in favour of the payee, i.e. the wife and the receiver. Case summary by Henrietta Boyle, Pupil at 1 Hare Court Read the full judgment of Maughan v Wilmot [2020] EWHC 885 (Fam) on BAILII
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New tax changes that may impact on divorcing couples

New tax changes that may impact on divorcing couples | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
New tax changes that may impact on divorcing couples from Sofia Thomas, one of the leading UK experts on tax on divorce and family breakdown.
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Family Law Week: W v H (divorce financial remedies) [2020] EWFC B10

Family Law Week: W v H (divorce financial remedies) [2020] EWFC B10 | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > Judgments W v H (divorce financial remedies) [2020] EWFC B10 HHJ Hess (co-chair of the Pension Advisory Group) considers financial remedies proceedings arising out of a divorce, in the first substantial treatment of pensions post the PAG publication. 1. This case is notable principally due to the approach taken to pensions – it is a rare published case where pension sharing is addressed in a needs-based context and on a set of facts that is within the range of 'day-to-day' matters seen by many family law professionals. The judge has given specific consideration to the report of the Pension Advisory Group, to the extent of quoting significant passages from the report itself, and the judgment very helpfully addresses some of the most common and most important factors involved many pensions cases. 2. The three key pensions points addressed here are: a. Whether to divide pensions according to capital value or income value b. Whether to exclude pension assets acquired before the marriage (a.k.a. 'apportionment' or 'ring-fencing') c. Whether to treat pensions separately or whether to 'offset' the division of pension assets against the division of other assets 3. Helpful references for readers may include: a. The report of the Pension Advisory Group, which can be accessed here b. This author's previous article summarising the PAG report and explaining some key concepts and terminology around pensions on divorce, which can be accessed here 4. It is notable that at paragraph 59 of the judgment the judge indicates he has approached the three pensions points above with specific reference to, and reliance upon, the PAG report, which is noted to have 'the support of the Family Justice Council and the President of the Family Division and should, in my view, be treated as being prima facie persuasive in the areas it has analysed, although of course susceptible to judicial oversight and criticism.' The facts of this case 5. The wife ('W') was 50 and The husband ('H') was 48. Length of relationship including cohabitation was 17 years. There were three children of the marriage, ages 18, 16 and 10. W and the children remained in the former family home. W was principle carer for the children and H earned the more significant income both during the marriage and after separation. W's anticipated future income from working was relatively modest (c.£14,000 per annum gross) and H's was relatively significant (c.£144,000 per annum gross plus bonuses). The key assets in the case were the former family home, with a market value of c.£730,000 and a net equity of c.£240,000, and H's defined benefit ('DB') pension fund with a cash equivalent ('CE') figure of c.£2.1m. Both parties had notable debts including litigation costs. 6. The judge concluded that the case was a needs case, and that there was a reasonable requirement for W to remain in the family home until the end of the existing mortgage product's interest-only term, namely November 2024, which meant that H's housing needs would be met until that time via the rental market. Thereafter H had a reasonable need to purchase his own property (see judgment paragraph 38). The parties were agreed that it was a case where spousal maintenance should be paid (and where child maintenance would be paid) and by the time of the final hearing there was a relatively nominal difference in the figures the parties were presenting on maintenance (see judgment paragraph 40). Housing, income, maintenance, debts 7. The court's approach to housing, income, spousal maintenance and debts was a careful and methodical one that makes the judgment very accessible, and does not require summary or repetition, on the basis of it being specific to the facts of the case and not the notable factor in the judgment. That being said, there is a helpful short summary of the key principles of contributions and equal division of capital at paragraphs 46 to 53 that may be of assistance for practitioners looking for a helpful reference point on these matters. 8. There is also a helpful mention at paragraph 70(i) of the case of AB v CD [2017] EWHC 3164 on the issue of global maintenance orders, the judge here noting that whilst AB v CD provides 'strong support' for the making of such an order, it is worth bearing in mind that 'The existence of a global order carries with it the complication of knowing how to proceed in future if, for example, circumstances change … if a disaggregated order can be made fairly then it is often the better approach…' Pensions 9. The treatment of pensions is the notable factor in this case and takes up a majority of the judgment. The three key pensions points identified are those set out above, and summarised in the judgment at paragraph 58. 10. On the first issue, namely whether the court should divide pensions with a view to equality of capital or equality of income, the following observations are made at paragraph 60: a. There is no 'one size fits all' answer to this issue b. Whilst there are a number of situations where reference to the overall / capital value figures is likely to be the appropriate means of calculation for the purposes of division (for example where pension assets are relatively small, where parties are relatively young, where pension assets are relatively straightforward) (60(i)) … c. … there are scenarios where division with reference to capital value 'may well not represent a fair solution', in particular where there is a defined benefit pension involved and/or where parties are closer to pension age. (60(ii)) d. The PAG report makes specific reference to this, and the judge has quoted at 60(iii) from the report itself. Key parts of that quotation being 'Given that the object of the pension fund is usually to provide income in retirement, it will often be fair … to implement a pension share that provides equal incomes from that pension asset … Equality of income will often be a fair result … A division that pays little or no attention to income-yield may have the effect of reducing the standard of living of the less well-off party significantly.' e. The Family Justice Council's report 'Guidance on Financial Needs on Divorce' makes a similar point, namely that 'In small to medium money cases .. where needs are very much an issue, a more careful examination of the income producing qualities of a pension may well be required…' f. On the facts of this case, as a needs case, the starting point was assessed to be pension sharing with reference to equality of income, not capital 11. Whilst it is not said explicitly in this judgment, the writer would submit it is apparent from both this judgment and the PAG report that if one were to suggest a 'normal', 'standard' or 'default' approach or assumption to pension sharing, it would be that other things being equal, sharing pensions with reference to income, not capital, is more likely to generate a fair result. Whilst of course this cannot be treated as any sort of formalised or strict approach, the broader principle of sharing with reference to income accords with the broader nature of what a pension asset is actually for – it is an asset that produces income upon retirement. Thus, it makes good sense that one would consider a pension's income figures, in preference to its capital value figures, when determining how it should be divided. 12. On the second issue, namely whether the pre-marital portion of the pension should be excluded from division (often known as 'ring-fencing' or 'apportionment'), the following observations are made at paragraph 61: a. Although it has been 'an established practice in some courts' to make a straight line deduction in order to exclude pre-marital pension contributions, 'this approach carries with it significant risks of unfairness' (61(i)). b. The justification of the above approach to deduction is sometimes said to originate from the case of H v H [1993] 2 FLR 335, but in fact there are very good reasons why this is not now applicable, including  'that at the time it was delivered pension sharing did not exist, White v White had not been decided and the use of CEs in these cases was not widespread.' (61(ii)) c. Pensions apportionment is in one sense 'no more than, in modern parlance, the identification of non-matrimonial property' (61(iii)) d. Crucially, it is said at 61(iv), that in a needs case 'Where the pensions concerned represent the sole or main mechanism for meeting the post-retirement income needs of both parties, and where the income produced by the pension funds after division falls short of producing a surplus over needs, then it is difficult to see that excluding any portion of the pension has justification. In the words of Lord Nicholls in White v White [2000] UKHL 54: "in the ordinary course, this factor"..i.e. the factor that the property concerned is non-matrimonial…"can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property".' (emphasis added by the writer) e. The rationale behind this is emphasised with reference at 61(v) to the PAG report, which points out that pensions should be treated no differently to other classes of assets when it comes to meeting needs – if an asset is required to meet needs then its source and date of acquisition is secondary, potentially to the point of irrelevance: f. "The vast majority of cases … will be needs-based. …  It is important to appreciate that in needs-based cases, just as is the case with non-pension assets, the timing and source of the pension saving is not necessarily relevant - that is to say, a pension-holder cannot necessarily ring-fence pension assets if, and to the extent that, those assets were accrued prior to the marriage or following the parties' separation. It is clear from authority that in a needs case, the court can have resort to any assets, whenever acquired, in order to ensure that the parties' needs are appropriately met" g. The nature of the Lifetime Allowance being to limit the tax benefits of pension assets worth more than the Lifetime Allowance figure (presently £1,055,000) means that 'it is quite unlikely that pension funds will themselves take the case outside the category of a needs case.' h. The unfairness identified at 61(i) is expanded upon at 61(vii) in relation to defined benefit pensions, where it is pointed out that most DB schemes acquire more value towards the end of the contributions period than at the beginning, and so to exclude on a straight line basis fails to reflect the disproportionate nature of contributions. 13. On the third issue, namely whether to treat pensions separately or to 'offset' the division of pensions against the division of other assets, the judge at paragraph 62 is keen to highlight the PAG recommendation to try where possible to avoid offsetting, due to the risks of unfairness that accompany the exercise. The judge notes at 62(ii) 'that mixing categories of assets runs the risk of unfairness in that valuation issues become very difficult, and, absent agreement, it may be unfair anyway to burden one party with non-realisable assets while the other party has access to realisable assets.' 14. The writer would also draw attention to the PAG recommendation that usually where offsetting is being considered, it requires expert assistance from a Pensions on Divorce Expert ('PODE') to be able to undertake suitable calculations for such purposes. To proceed with offsetting in the absence of PODE advice as to how to approach the calculations carries with it a significant risk of liability for professional negligence. 15. In this case, therefore, the judge rejected H's proposed apportionment approach as unfair (and it is interesting to note how different the division would have been  - see paragraph 63(iv) in particular for the figures) and determined that equalisation of pensions income at age 60, on the facts of this case, was the fair outcome. The judge also rejected W's proposed offsetting of pensions assets against equity in the family home on the basis that it would not provide H with adequate capital to re-house by way of future purchase. 16. The key terms of the final order to be made are found in the judgment at paragraphs 65, 71 and 76. Costs 17. On the matter of costs, it is worth reading paragraph 41, where the judge rejects a request from W for an extra £1,000 per month in periodical payments for 26 weeks (the writer assumes this is a typographical error and should refer to months) to pay her outstanding legal costs of £26,000, on the basis that it would be a back door costs order that was not justifiable, bearing in mind FPR 28.3(5). Summaryby Matthew Richardson, barrister at Coram Chambers You can read the full judgment of W v H (divorce financial remedies) [2020] EWFC B10 on BAILII Footnote for consideration as to publication: Whilst it is noted that this judgment is from a Family Court case with a judge sitting below High Court level, in terms of the authority with which this judgment can be taken, it was delivered by HHJ Hess, who at the time was: the Designated Family Judge for Wiltshire, the co-chair of the PAG, the co-author of the practitioner text 'Pensions on Divorce: A Practitioner's Handbook', and one of the two lead judges responsible for the implementation of the 2018 Financial Remedies Pilot.
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How to reduce Stress and maintain Mental health during a Divorce: Guest blog by Luci Larkin at Woolley&Co

How to reduce Stress and maintain Mental health during a Divorce: Guest blog by Luci Larkin at Woolley&Co | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
(image: https://sasforwomen.com/divorce-quotes-inspirational/) Going through a divorce or relationship breakdown can be one of the most stressful situations a person can find themselves in. You lose your friend, partner, confidante and have to adapt to living as a single person, often as the primary carer of children.  This is a time of extreme and mixed emotions…
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Ogunware v Ogunware [2019] EWHC 2428 (Fam)

Ogunware v Ogunware [2019] EWHC 2428 (Fam) | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
An application for a declaration that a Nigerian divorce certificate was not entitled to recognition in England and Wales because the marriage had not in fact taken place. Holman J found that this application did not fall within any of the purposes listed in section 55 of the Family Law Act 1986. The court was not empowered to make the requested declaration and the application was dismissed. Judgment, published: 20/09/2019 Topics Share
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Family Law Week: Resolution responds to news that Divorce Bill will be dropped

Family Law Week: Resolution responds to news that Divorce Bill will be dropped | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > News Resolution responds to news that Divorce Bill will be dropped Numerous family law-related private members’ bills fail following prorogation Resolution has responded to the news that the Divorce, Dissolution and Separation Bill has failed as a consequence of the prorogation of Parliament. Generally, bills in progress cannot be carried over from one session into the next unless a carry-over motion is passed. Without such a motion, they must be abandoned or reintroduced from scratch in the next parliamentary session. The Government's prorogation of Parliament is subject to appeal to the Supreme Court which will be heard on 17 September. Speaking in response to the Bill being dropped, Jo Edwards from Resolution, which has been at the forefront of the campaign for no fault divorce, said: "It's obviously incredibly frustrating, given the support from politicians across the House, the judiciary, and the public, as well as Resolution members like myself. The argument for no fault divorce has been put and won, and it's simply down to wider events in Westminster and elsewhere that the Bill is not continuing its smooth passage through Parliament. "However, given the wide support the Bill has so far enjoyed, together with the fact divorcing couples have waited for years for this reform, we are optimistic that measures can be reintroduced quickly in a new Parliament, and Resolution will be making the case in the coming weeks and months that Ministers should do just that." As of 9 September 2019, there were in progress numerous private members' bills relating to family law. To check the state of progress of each of the various family law-related bills immediately prior to prorogation, click here and then click on the bill of interest to you. For an explanation of the effect of prorogation on legislation, click here. For the Divorce, Dissolution and Separation Bill, click here. 15/9/19
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Family Law Week: MIAMs increased by 4 per cent in last quarter of 2018

Family Law Week: MIAMs increased by 4 per cent in last quarter of 2018 | Decree Absolute: Divorce & Cohabitation in the UK | Scoop.it
Home > News MIAMs increased by 4 per cent in last quarter of 2018 Flattening in the trend of declining mediations and MIAMs Mediation Information and Assessment Meetings (MIAMs) increased by 4 per cent in the last quarter of 2018 compared to the previous year and currently stand at just over a third of pre-LASPO levels. During October to December 2019, mediation starts increased by 6 per cent, and outcomes increased by 5 per cent and are now sitting at around half of pre-LASPO levels. These figures compare against a particularly low October to December quarter in 2017 and in context is an overall flattening of the trend. The figures are revealed by the Ministry of Justice release of legal aid statistics for October to December 2019. For the release, click here. 31/3/19 Keywords:mediationMIAM
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