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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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Family Flyer 70

March 10, 2018

The Court’s Responsibility to Heed its own Overriding Objective

CH v WH [2017] EWHC 2379: Mostyn J.

Introduction:

The Family court has a long tradition of not being constrained by the limits of the specific application placed before it. 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…

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Family Flyer 69

March 10, 2018

Seeking Part 25 Permission (Experts Instruction – Financial Remedy Cases) – Is a Formal Application required?

Introduction:

1. Practitioners will be aware that recently the local Family Court in Liverpool has emphasised that formal applications will normally be needed in all cases where an expert report is to be sought. It will be recalled that my previous Flyer 35 (http://www.ashleymurraychambers.co.uk/wp-content/uploads/2014/04/Flyer-35.pdf) dealt with the introduction of this, as then, new procedure for the instruction of Court experts in financial remedy cases.

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Family Flyer 68

March 10, 2018

Barristers Fees and Transparency – the Bell Tolls

Recent Reports on Transparency at the Bar:

The Bar Standards Boards recently published its research findings (July 2017) in relation to the satisfaction of individuals, who had recently used the services of barristers in family law matters. The outcome was broadly positive.

However, 83% of those surveyed believed that barristers charge higher fees than other legal providers and more than half those sampled indicated that they were not confident that they had the appropriate information to make an informed decision on who to approach for advice on a family law matter.

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Family Flyer 67

March 10, 2018

Tobias v Tobias [2017] EWFC 46: Mostyn J – guidance on applications for freezing orders, ex party orders and use of the out of hours judge

  1. W was in the FMH and H in a care home.  H applied for an ex party freezing order upon the FMH, which was charged in favour of commercial creditors and the Local Authority for unpaid council tax.  H also had registered a FLA 1996 notice of home rights.
  2. H’s application was to the out-of-hours High Court judge albeit there was no emergency.  His statement supporting the application was defective in failing to list the secured commercial debts, as was the application and there was also no divorce petition issued.

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