Divorce & Matrimonial Finance

As a practising barrister and mediator, I want my clients to make the most of  Financial  Disputes Resolution appointments. [FDR]  The purpose of this article is to assist clients, litigants in person or clients who instruct counsel on a direct access basis to understand the process to enable them to get the most from their … Continue reading →

In case anyone has missed the announcement the 17th May 2023 saw the release on brand new versions of the Standard Family Order. In his advisory notice Peel J said the following: The Standard Family Orders (SFOs) do not have the status of “forms” under FPR Part 5. The default position is that they should be used, … Continue reading →

The primary purpose of this article is to draw attention to a very useful jurisdiction to vary financial remedy orders that is very rarely referred to, and used even less, but also, to refer cautiously to some obiter comments suggesting, against the general flow of judicial pronouncements, that it may provide only very limited remedies … Continue reading →

It was, Mr Justice Peel concluded, “the clearest possible case” for reasonable financial provision from a deceased’s estate under section 1 (1) (a) of the Inheritance (Provision for Family and Dependants) Act 1975 (IA 1975). Although an undefended Part 8 claim determined summarily (albeit a decision which caused “careful and anxious consideration” on the part … Continue reading →

The recent case of HD v WB [2023] EWFC 2 explores the issue of pre-nuptial agreements and what weight should be attributed to them when also considering parties’ needs. Both husband and wife were aged forty-six and had initially began their relationship in 1996. Whilst the relationship had ended after a few years, they again … Continue reading →

Readers are referred to the article by  Melanie McIntosh “Financial Remedy: Snapshot Eclectic Update” drawing attention to the Statement on the Efficient Conduct of Financial Remedy Proceedings given The Hon. Mr. Justice Mostyn has again expressed exasperation due to the “utter disregard”  for guidance, procedure and orders in the family courts roundly critising the case … Continue reading →

The purpose of this article is to provide a brief update in respect of a few diverse financial remedy issues/topics and in particular: (1) anticipated HMRC changes to Capital Gains Tax (“CGT”) on separation and divorce, (2) Statement on the efficient conduct of financial remedy hearings proceeding in the financial remedies court below High Court … Continue reading →

Business Assets: Correct treatment of both a Directors Loan Account and a Discount from Par Value & Litigant in Person: The Appellate Court making the Appellant’s Case for Her Mostyn J gave judgment on 28th October in Clarke v Clarke [2022] EWHC 2698 (Fam) on an appeal from HHJ Farquhar.  His Lordship described the judgment … Continue reading →

In this rather tragic case the court had to consider whether the wife’s death after the making of a Pension Sharing Order was a Barder Event The Facts The husband (H) and the wife (W) agreed their financial settlement and a consent order was approved by the court in January 2021. Decree absolute had been … Continue reading →

At present, clients are facing an overburdened court system. Unfortunately, courts regularly vacate hearings with little notice. In my experience as a mediator and barrister, I am well aware of how having a lawyer by their side and having a judge make a decision is reassuring for people. This need can obstruct litigants from pursuing … Continue reading →

Finality is one of the core principles of financial remedy litigation.  It is therefore an unusual case where capital claims are left open for 10 years. That was the order made in the recent decision of HHJ Edward Hess in X v. Y [2022] EWFC 95 and published here. It was a rather common case … Continue reading →

The President’s Guidance on Transparency from October last year asked all judges to publish anonymised versions of at least 10% of their judgments with the express aim of ensuring that a larger number of judgments were published. The Guidance had noted that only 87 family cases were published in 2019 (222 were published in 2015). … Continue reading →

We are suffering one of the biggest problems ever seen in the family finance courts: a lack of judges and judicial time to hear the cases. Most would agree that a child who is at risk of imminent harm should be prioritised by the family court. To those litigants dealing with a matrimonial finance case … Continue reading →

In case you have missed it on 02 March 2022 Mostyn J made an  announcement with the authority of the President about changes to the Standard Financial Remedy Orders as the result of the fact that on 6 April 2022 the Divorce Dissolution and Separation Act 2020 was to come into force. Among many other … Continue reading →

Having written previously about non-matrimonial assets and had recent cause to carefully consider both, on the one hand the effect of the relatively recent decision in WX v HX [2021] EWHC 241 (Fam) that some argue goes to the next level in protecting non-matrimonial assets and, on the other hand, to what extent nonetheless non-matrimonial … Continue reading →

In the recent case of P v Q Financial Remedies 2022 EWFC B9, heard in February 2022, one of the issues that Hess HJ had to consider at final hearing was that of “hard and soft” loans in the context of all the circumstances and the law. Every case depends on its own facts. However, … Continue reading →

On 6th April 2022, the long-awaited no-fault divorce legislation comes into force. Under the full provisions of the Divorce, Dissolution and Separation Act 2020 couples can now divorce without having to apportion blame or wait out a separation period. This brings clear advantages to future clients. The new process should be faster, more straightforward, and … Continue reading →

Any reported case of His Honour Judge Hess addressing pensions and their pitfalls is required reading for matrimonial finance lawyers and T v T (variation of a pension sharing order and underfunded schemes) [2021] EWFC B67 (10 November 2021), although of narrower application than W v H (divorce financial remedies) [2020] EWFC B10), is no exception. … Continue reading →

On 11th January 2022, the financial remedies gods (or rather, Mostyn J and HHJ Hess) blessed us all with a shiny new “Efficiency Statement”, effective immediately. The Efficiency Statement (“ES” hereafter) originates from recommendations made by the Farquhar Committee in September 2021, which looked to improve remote working practice going forward (their report was literally … Continue reading →

There are two areas of principle that are very difficult to argue successfully for a larger share of the marital acquest: contributions and conduct.  In this article I intend to look at the types of conduct that might be inequitable to disregard pursuant to section 25 (2) (g) of the Matrimonial Causes Act 1973, by … Continue reading →

Sometimes some self-evident truths simply need to be said out loud and so, this short article does little more than draw attention to a first instance decision that says what we all know but, by reason of having only just been reported (and only in FLW so far) and coming as it does from Cohen … Continue reading →

The purpose of this article, is to consider the application of the section 25 criteria and in particular the issue of company valuation in the case of E v L [2021] EWFC 60, as decided by Mostyn J. Jane Carter of these chambers has discussed this case and its primary ratio and reasons in her … Continue reading →

The Family Court is seeing an increasing number of cases where property is (or is asserted to be) owned by a third party.  As more parents assist children with purchasing a home or friends buy with friends, it is ever more likely that a financial provision case will involve consideration of who owns what.  Here … Continue reading →

To us Brits, proud of our unswerving fidelity to the tradition of judicial discretion, the pre-nuptial agreement has, traditionally, been viewed as an American curiosity. A handy plot device for saucy straight to video B-movies, and that thing which, when finally revealed at the end of the episode, gives Columbo the motive he was missing … Continue reading →

Continuing their valiant efforts to make pensions and pension sharing more accessible to all, the Pension Advisory Group – made up of lawyers, academics and finance professionals – has released further resources to assist the general public.   The Group is best known for its seminal report, ‘Guidance on the Treatment of Pensions on Divorce’, … Continue reading →

The husband was aged 66 and the wife aged 61. The parties’ relationship began in 2015 when the husband immediately began providing the wife with financial support, paying her between £5000 – £10,000 per month. The parties became engaged in 2016 married in 2017 and separated in 2019. The parties disagreed over the date of … Continue reading →

Following on from Edward Kenny’s article last month on Maintenance Pending Suit, it seemed logical to think next about spousal maintenance at final hearing but, of course at that point thoughts automatically turn to the Court of Appeal’s decision in  Waggott v Waggott [2018] EWCA Civ 727, 2 FLR 406 and, what seemed at the … Continue reading →

Having recently had several cases with pension complexities, reread the PAG report and authorities and attended two remote seminars on the same, it seemed sensible to write a short review of what seem to me to be the key issues on a subject that probably causes more trouble than any other in financial remedy proceedings. … Continue reading →

In this article I will look at the recent decision of Mr Justice Moor in the case of RC v JC [2020] EWHC 466 (Fam) The brief facts of the matter are that the parties cohabited and were married for a total of 11 years. They had two children, aged 8 and 10. When they … Continue reading →

During these troubled times, when a reliable crystal ball would be helpful, the case of OC v AG [2020] EWFC 52 in which judgement was handed down on the 29th of July 2020, is of interest. The Facts The facts related to cross-applications by the Husband (OG) and the Wife (AG) in respect of financial … Continue reading →

The question of varying a Rose order has had new light shed on it by Mr. Recorder Allen QC in G v C [2020] EWFC B35 (OJ). For those of you who are not family practitioners, there follows a brief fly-past of what constitutes a Rose order. Matrimonial finance specialists may wish to move straight … Continue reading →

A client who is successful in most forms of civil litigation can expect to recover some if not all their costs. Since the abolition of the Calderbank offer, it has been difficult to obtain cost orders in financial remedy litigation and the general rule is that the court will not make an order requiring one … Continue reading →

Two short but troubling issues in troubled times: Can the FR Appeal Court hold a one-sided oral permission hearing without formal notice to the Respondent? Does the pandemic/lockdown amount to a Barder event? Plus Arbitration simply is the answer, especially for children. Permission to Appeal Hearing I have recently had to consider whether it is … Continue reading →

The issue of pensions in financial remedy proceedings is a complex area and has been subject to much change over the years. As many of you will be aware, the Pension Advisory Group (“PAG”) published a comprehensive report ‘A Guide to the Treatment of Pensions on Divorce’ in July 2019. It was a much-welcomed publication … Continue reading →

The purpose of this article is to (a) review the guidance set out by the Court of Appeal in the case of Imerman v Tchenguiz and others; Imerman v Imerman [2011] 1 All ER 555 which was heard on the 10th to 12 of May 2010, judgement being handed down on the 29th of July … Continue reading →

Hall v Jagger; Akhter v Khan: void, voidable and non- marriages. In 1999, Jerry Hall and Mick Jagger separated and in a move heralding a long and acrimonious legal battle, Jagger sensationally released a public statement saying that he would be contesting Jerry Hall’s petition for divorce on the grounds that he and Jerry Hall … Continue reading →

The recent case of AR v ML [2019] EWFC 56 is a cautionary tale against adducing further evidence at a late stage in an attempt to have the last say within financial remedy proceedings. This case centred around the wife’s application for financial remedy arising out of her marriage to the husband. The matter proceeded to a … Continue reading →

Faced with the competing claims of transparency and privacy, free speech and family life, family law will always incline towards the latter. Its first instincts are protective, guarding the intimacies and lives of its own subject families and, particularly, its children.[1] First and foremost, family proceedings are and remain private matters. This fundamental principle holds … Continue reading →

Further to my previous article on pre-nuptial agreements, I have recently had cause to consider the overlap between the various possible vitiating factors, particularly undue influence and legal advice. Following on from Lord Phillip’s consideration in Radmacher of the vitiating or weight reducing factors of duress, fraud, misrepresentation, undue pressure and unworthy conduct such as … Continue reading →

The purpose of this article is to draw attention to 2 recently reported cases dealing with third party trusts. Both emphasise the position that the courts will take in relation to such trusts. In essence third parties cannot be compelled by the court to make lump sum orders. In  Daga v Bangur [2018] EWFC 91 a … Continue reading →

The purpose of this article is to provide a brief update to my previous article dealing with pensions and pension offsetting.  It will be recalled that my previous article dealt in particular with the case of WS v WS [2015] EWHC 3941 (Fam) and the fact that the Duxbury calculations were used to ascertain future … Continue reading →

The very recent decision of Mostyn J in Ipekci v McConnell [2019] EWFC 19 illustrates the fragility of Pre-Nuptial Agreements (“PNAs” hereafter) from one end (vitiation) and the same case and other recent decisions do so from the other end (the extent to which they bind the court even if valid). These two ends of … Continue reading →

The important thing to remember about mediation is that it is your process. There are many ways that you and the mediator can tailor the available options to make the process one that is truly bespoke. Some of those options are set out below: Gathering financial information: Whether as part of the Court process or … Continue reading →

First, make contact with the mediation clerks, who will provide you with some information and send you a referral form to complete. Complete your referral form and return it to the mediation clerks, who will then set up an initial session for you to attend with the mediator (on your own). Attend an intake/MIAM session … Continue reading →

Do I have to mediate before I go to Court? Mediation is a voluntary process, so you’re under no obligation to mediate before making an application to Court. But there IS a requirement that, before making an application to Court in respect of finances or children (unless any of the exemptions apply), you attend an … Continue reading →

When is something that appears to be a matrimonial asset not in fact a matrimonial asset and how does a non-matrimonial asset become a matrimonial asset and, what difference does it make? The very recent High Court case of IX v IY [2018] EWHC 3053 (fam) concerns this issue and, whilst my colleague Dean Thistle … Continue reading →

On the 16th November 2018 the Flexible Operating Hours (“FOH”) Pilots: Prospectus for Civil and Family Court Pilots was published. HM Courts and Tribunals Service (“HMCTS”) announced that early and late sittings will now be trialled over six months in civil and family courts in Manchester Civil Justice Centre and Brentford County Court, commencing in … Continue reading →

Some time ago now I wrote an article about the Supreme Court case of Wyatt and Vince. That case explored the issue of whether a party to a marriage can make a claim many years after the marriage has ended; to which in short, the answer was, Yes. The recent High Court case of A … Continue reading →

This case involved two parties who had married in 2000 and subsequently separated in 2010. The marriage produced one child who continued to reside with the wife. On 10th December 2012, a final financial remedy order was made dividing the capital unequally in the wife’s favour in order to enable her to purchase accommodation for … Continue reading →

When conducting a family law case, chattels are normally dealt with in one of two ways. In some cases, clients will argue tooth and nail over all chattels involved and the arguments themselves will form a large part of proceedings. However, in other cases, chattels are an afterthought, discussed at the door of the Court. … Continue reading →

It is a familiar problem. A divorce is being endured. It is, by definition, fractious and, most importantly, still fractious in respect of the children. Or, put in lawyer’s tongue, there are ongoing matrimonial finance proceedings, in which the children are the first consideration (section 25 (1) Matrimonial Causes Act 1973) but the “child arrangements” … Continue reading →

Can you get an order for sale of the family home before the final hearing? As of a few weeks ago, and some 45 years after the Matrimonial Causes Act was enacted, it became apparent that eminent High Court Judges disagree on both the jurisdiction and the basis for such an order. So can you … Continue reading →

A recent case before Mostyn J provides a helpful reminder of what a court can, and cannot, do when seeking to implement a final financial order. The case is SR v. HR (SC (as Trustee in Bankruptcy of SR) intervening) [2018] EWHC 606 (Fam). A consent order had been approved in 2012 which included property … Continue reading →

The prospect of one party receiving an inheritance is often cited in financial relief cases as a reason to depart from equality. But to what extent is the court likely to take it into account? What factors are relevant in assessing what is sufficiently certain and what is impossibly vague? The decision in Alireza v. … Continue reading →

The purpose of this article is to explore in the context of Financial Remedy, the extent to which the law has evolved, if at all, since the case of Xydhias v Xydhias [1999] 2 All ER 386 especially in relation to the rather vexed question of whether the parties have entered into a concluded agreement, … Continue reading →

There has been a very useful recent decision on global maintenance. Global maintenance is the mechanism by which the Court makes an order that provides for an overall award of maintenance but allows for that award to be reduced by the amount of child maintenance paid under the statutory CMS system. Arguably a global maintenance … Continue reading →

Following separation, the traditional process of resolution of issues through correspondence or the court process works for many. But, whether to avoid the long delays caused by court listings, the cost of complying with directions or simply the adversarial nature of disputes, an increasing number are now seeking a more amicable resolution. The collaborative process … Continue reading →

In a terse and succinct judgment approved by the President, Mr Justice Mostyn has made it clear that the Family Court has the power to order one party to indemnify the other in respect of a mortgage liability (CH v WH [2017] EWHC 2379). In CH v WH [2017] EWHC 2379 the parties owned two … Continue reading →

It is easy to get so used to the ‘standard’ procedure for financial provision claims that little attention is given to the accelerated procedure when a variation application comes around. It often happens that the parties – and the court – fall into the usual routine of extensive disclosure, questionnaires and, inevitably, cost. But a … Continue reading →

In the case of Birch and Birch [2017] UKSC 53 the Supreme Court decided that a consent order made in 2010, under which the wife undertook to discharge the mortgage on the family home in return for the husband giving up his interest in it could be revisited by the court. The brief facts are … Continue reading →

I recently had a hybrid Child Arrangements Order, Specific Issue Order (Schools) and Schedule 1 Children Act case where the Husband/Father argued that because the Financial Remedy final order had referred to the issue of school fees in the preamble, recording that the Wife would endeavour to pay half and that the parties would review … Continue reading →

It has been more than a decade since Miller/McFarlane and it has taken the demolition of White Hart Lane to stymie the chants about Mr. Parlour’s need to take subterranean public transport. And yet, the concept of special contributions is still not put to bed. Blame the lawyers. In Work v Gray [2017] EWCA Civ … Continue reading →

Many of us will have experience of section 28 of the Matrimonial Causes Act 1973 (‘MCA 1973’). Regular reference is made to section 28(1A) which allows the court to prohibit any application under section 31 to extend the term of a periodical payments order. We all regularly use section 28(1), which provides that the remarriage … Continue reading →

“A grave and widespread problem….” is how Wilson J (as he then was) referred to the question of how can a spouse, usually the wife, who is ineligible for legal aid but has negligible capital, secure legal advice and representation in order to pursue her rights against her husband. [Sears Tooth (A Firm) v Payne … Continue reading →

In my view there are many reasons why we lawyers should be getting serious about the collaborative process. The first is the over-stretched, over-burdened and under-resourced Court Service, which means that clients have to wait longer than ever for the resolution of their case.  The second is the ever-more-limited resources of clients, and the difficulty … Continue reading →

An amended version of a paper originally presented at the Becket Chambers’ Family Finance Seminar at Eastbourne, Dartford & Canterbury on the 8th, 9th & 11th February 2016. Bringing third parties into financial remedy proceedings is an extremely risky and potentially costly business.  The two tales are cautionary in very different ways; the first being … Continue reading →

Our financial remedy practices would be far easier if our clients were squeaky-clean with nothing to hide. But what if that isn’t the case? What if your client has had a run-in with the Police and has a confiscation order made against them? What impact might that have on the divorce proceedings? First, a bit … Continue reading →

In advance of the forthcoming Becket Chambers seminar series, where I will be tackling the thorny topic of disclosure, here is a little taster in advance. According to FPR 2010 Part 21 and PD 21A, there are two stages of disclosure: Form E, and then the questionnaire. Or more precisely, the answers to questionnaire. Permission … Continue reading →

The President of the Family Division has ruled that PD 30A 14.1 of the Family Procedure Rules – which states that consent orders in financial provision proceedings can only be challenged by way of appeal – was ultra vires.  It is therefore a nullity and leaves in place the power of the family court to … Continue reading →