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Family Law Journal [2018] Fam Law 1548

December 9, 2018

The width of the court’s discretion under s 31(1), MCA 1973 – for width read uncertainty: Mills v Mills

As is now well rehearsed, the Supreme Court had granted leave to appeal to H on a narrow basis, being ‘whether, in light of the fact that provision had already been made for W’s housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judge’s decision not to increase the periodical payments so as to cover all of the wife’s current rental costs’.

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Family Flyer 74

December 9, 2018

Ideals in a less than ideal system

The Central Family Court has now issued a directive that family professionals will be expected to draw up non financial orders, if the case is concluded by 1pm, by 4.30 pm that day and, if concluded later that day, then by the start of business the next working day.

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Family Flyer 73

December 9, 2018

Current Position of the Prenuptial Agreement (‘PNA’)

In recent instructions to draft a number of prenuptial agreements, I have provided to the solicitor a Summary of the present developed position concerning the approach to prenuptial agreements. I have been told the Summary was found useful and so I have included the same now as a Flyer to at least provide a quick aide memoire of the up to date law on this subject.

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Family Flyer 72

December 9, 2018

For Discretion read Uncertainty – Mills v Mills [2018] UKSC 38

The Supreme Court’s anticipated decision in the variation of periodical payments case of Mills v Mills was a bit of a damp squid despite commentators predicting a major shift was imminent in regard to maintenance entitlement periods and the basis of future variation of such orders. However, hidden within the Court’s determination are likely to be some future problems for the profession’s ability to advise clients of the Court’s likely approach and outcome to variation applications.

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Family Flyer 71

December 9, 2018

Is an earning capacity a marital asset subject to the sharing principle?

Waggott v Waggott [2018] EWCA Civ 727

Introduction:

The higher courts have over recent years repeatedly emphasised the need for consistency in the application of the established principles of financial remedy distribution on divorce as suggested by both the appellate decisions of White and Miller/McFarlane. Such consistency of principle application undoubtedly assists settlement and results as the Court of Appeal acknowledged in less than 10% of all such financial cases going to a contested hearing.

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Family Law Journal [2018] Fam Law 873

December 1, 2018

Setting aside an order: the service process: Wilmott v Maughan

The parties married in 1991, separated in the 1990s with a decree absolute in 2001.  The final financial remedy consent order was in June 2007. By October 2011 W had, in the face of H’s default, started enforcement proceedings under the 2007 consent order which had since continued. H maintained he had been resident in Istanbul working as an air pilot since 2011. Leave to appeal (King LJ) had been granted to H but restricted only to orders relating to W’s enforcement applications made after 1 July 2013.

The relevant procedural history started with an order of Ryder J (as he was then) in January 2012. H had initially applied to set aside or vary all orders in the family proceedings allegedly for fraud, misrepresentation or material non-disclosure and H was recorded as saying he would provide the court with a post office box number in Somerset for service. Ryder J had dismissed H’s application to set aside/vary on the basis that it did not demonstrate even a prima facie case. In November 2012, Ryder J granted W a further order for alternative service when H failed to provide the promised service post office box number. Service was to be deemed if sent by email to one of two specified addresses.

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Family Law Journal [2017] Fam Law 1196

March 10, 2018

Sharp turn in divorce finance distribution: the cost of principle versus pragmatism

As is well known, a significant number of marriages end in divorce (ONS – 2013 showed 34% of marriages had ended in divorce by the 20th marriage anniversary – albeit the ONS – 2015 found there had been a modest reduction in divorce between opposite couples overall to 101,055 from 111,169 in 2014 – Divorces in England and Wales: 2015, ONS). As such, the risk to married couples of undergoing the trauma and cost of divorce remains significant. A survey undertaken by Resolution in 2014 found 28% of the separated adults taking part had undertaken some form of additional borrowing as a direct result of their relationship break-up (www.resolution.rg.uk/site_content _files/files/reso).

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Indemnities and Consequential Orders – the Avoidance of Sterile and Technical Objections – CH v WH [2017] EWHC 2379: Mostyn J.

March 10, 2018

Introduction:

The courts exercising family jurisdiction have a long tradition of not being constrained by the limits of the specific application placed before the court. A master of the matrimonial law, Lord Justice Ormrod in Ward v Ward & Greene (1980) 1 AER 176 observed, at the end of an appeal in which it had been suggested that the court could not under the (then un-amended) s 24 of the Matrimonial Causes Act 1973 make an order for sale without there also being a pro form summons before the Court under s 17 of the Married Women’s Property Act 1882, as follows:-

‘Before leaving the appeal finally, however, there is one point with which I want to deal… For my part, I have never understood the advantages of multiplying pieces of paper intituled in particular statutes named at the head of the summons.

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Family Law Journal [2017] Fam Law 425

March 10, 2018

Pre-nuptials: The profession’s responsibility

is one of the few senior Circuit specialists outside London with a recognised big money ancillary relief

practice. He is known for his knowledge and ability in this area of the law and his detailed preparation and attention to his brief.
The quality, clarity and cost of pre-nuptial agreements being produced for clients and the varied approaches being adopted to the negotiation process engaged in obtaining the same by some sections of the profession, it is suggested, requires some adjustments to current practice.

INCREASED INTEREST

It remains questionable whether the uptake in instruction in this area of work is truly reflective of a genuine need for such agreements in certain cases and in an increasing minority of cases whether it reflects nothing other than a naked attempt, without legal justification, to control the weaker financial party.

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Short Marriage Assessment of Quotidian Needs – FF v KF [2017] EWHC 1093 (Fam) (Mostyn J)

March 10, 2018

Introduction:

Whilst few of us will have used the adjective ‘quotidian’ this year or, let’s face it, in our lifetime – its’ use within Mostyn J’s recent judgment on appeal immediately in front of ‘needs’ does, at least, make us first check our web dictionaries as to its meaning and then, once hooked, to actually read a highly economic dispatch by His Lordship of the issues in a case which occupied the Manchester Money Judge, HHJ Wallwork, five days of hearing – mostly, according to Mostyn J, in addressing the ‘completely irrelevant’ subject of the level of the parties’ marital acquest, which W claimed was £3m when H had already in an open offer proposed more than half of that amount anyway and when both parties’ open positions ‘were predicated on an assessment of the wife’s needs’ (para 7).

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