The Family Justice Review panel appointed by the Coalition Government has been charged with investigating reforms to simplify and improve the cost-effectiveness of the current family justice system. The review objectives include to:

·     examine both public and private law cases

·     explore if better use can be made of mediation and how best to support contact between children and non-resident parents or grandparents

·     examine the processes (but not the law) involved in granting divorces and awarding ancillary relief, and 

·     look at how the different parts of the family justice system are organised and managed.

The panel chairman is in favour of increased use of mediation to ease the pressure on the family justice system with rising case volumes and inherent delays in the system resulting in a cost to the State of more than £800million per year. The possibility of compulsory mediation referrals has been muted yet the panel accepts that not all cases are suitable for mediation. A greater reliance upon collaborative law is also under consideration by the panel yet there appears some hesitation due to the lack of empirical data available to assess the success of collaborative law in resolving family disputes.

The focus of the panel upon efficiency saving measures is unavoidable as the family justice system cannot be isolated from the necessity for cuts and savings. Measures are welcomed to decrease the burden on the system, reduce bureaucracy and to create momentum for much needed modernisation. A drive towards providing Court services online and accepting e-mail communications would undoubtedly save time and money. However it is unfortunate that due to the current economic climate substantive legal issues must be sidelined in favour of a procedural overhaul. Proposals for pre-nuptial agreements to become binding and reforms to the legal system governing the rights of unmarried couples are outside of the remit of the panel despite these issues being aired by the Conservatives and Liberal Democrats respectively during their election campaigns. With the Office of National Statistics predicting that the number of unmarried couples cohabiting will increase dramatically over the next 25 years, rising from £2.3 million to an anticipated £3.8 million in 2033, these pressing issues cannot be left off the agenda for too much longer.

Birmingham collaborative family lawyers got together once again in July to welcome other local lawyers who completed their collaborative training this month. Over the course of the last 5 years we have been promoting collaborative law, together with the national body of family lawyers, Resolution, as a valuable alternative means for dispute resolution in family law matters.

Collaborative family law involves both parties together with their solicitors making a commitment to resolve issues without going to Court via a series of four way meetings. The process requires a full and frank exchange of information. The parties identify and agree the issues to be discussed and a timescale for resolution.

It is an option that suits many separating couples. If you require further information or wish to discuss the merits of collaborative law to your situation please do not hesitate to contact me.

The Forced Marriage Unit, a joint initiative between the Home Office and Foreign Office has recently reported an increase in the number of calls and e-mails in respect of male victims from 134 in 2008 to 220 in 2009 (a 65% increase). It has been suggested that this may be due to pressure exerted upon gay men to marry against their will. The Forced Marriage (Civil Protection) Act) was enacted in November 2008 and statutory guidance issued by the Forced Marriage Unit identifies controlling unwanted sexuality (including perceived promiscuity, or being lesbian, gay, bisexual or transgender) as a key motivation behind forced marriages together with securing UK residence and citizenship, controlling unwanted behaviour (for example alcohol and drug use) and protecting family honour. 

A Forced Marriage Protection Order can be sought under the Act ‘to protect both adults and children at risk of being forced into marriage and to offer protection for those who have already been forced into marriage.’ Since the Act came into force over 150 orders have been made. Unusually, an application for an order can be made by the victim, relevant third party and any other person who is given leave. A power of arrest may be attached to the order if the respondent has used or threatened violence. If no power of arrest is attached any person (with leave) can apply to court for issue of a warrant for arrest due to non-compliance with the order.

The number of referrals to the unit is startling low with only 1,682 cases referred to the Unit last year. It is widely suspected that the incidence of forced marriages is far higher. It is hoped that the protection, advice and support services provided by the Unit will be utilised more readily in the future to ensure vulnerable individuals are safeguarded from emotional and physical abuse, upholding their fundamental right to choose.

In March 2010 the High Court awarded Victoria Jones (44) £5 million following her divorce from Gareth Jones. Mr Jones has been described as a self made man having made his fortune in the oil and gas industry.

He sold his business in May 2007 for £32 million and retired. The Court assessed the value of the matrimonial assets at approximately £25 million. The High Court Ordered that Mrs Jones was entitled to a limited share of the matrimonial assets as the majority had been established before the marriage took place. This was not accepted by Mrs Jones who argued that the business was in fact worth £3.2 million when the parties married.

Mrs Jones has been granted permission by the Court of Appeal to appeal the final order. The President of the Family Division considers that Mrs Jones’ has an arguable case and accordingly has given her permission to appeal.

This case is yet another example of the arguments that arise over pre marriage acquired and post separation wealth and the efforts that can be made to ring fence certain assets.

Speaking on BBC Radio 4 yesterday Lord Justice Thorpe contended that there is real need to re-evaluate the law governing applications by a primary carer to relocate abroad, permanently removing children from the jurisdiction.

Lord Justice Thorpe emphasised that Judge-made law has been applied in the context of these very emotive cases for the last 40 years and referred to the leading authority of Payne v Payne. In this case Lord Justice Thorpe sitting in the Court of Appeal together with Dame Butler Sloss and Lord Justice Walker considered the father’s appeal against rejection of his residence application and an order permitting the mother to remove their child permanently to New Zealand.

In relocation cases generally a distress argument is frequently relied upon by the applicant parent as the Courts take into account the effect of refusal of leave upon the resident parent who may be seeking to relocate to secure greater emotional and financial support from family abroad. The Courts must then frequently balance this risk of harm against the potentially damaging implications of denial of contact with the other parent and the wider family who remain in the UK and may be unable to afford frequent foreign travel in order to maintain contact. The father in Payne v Payne clearly felt that the distress argument creates an unjust presumption in favour of the applicant mother however the Court of Appeal held that consideration of the potentially detrimental impact of refusal of the applicant’s proposals to move the child abroad did not amount to such a presumption.

Lord Justice Thorpe regarded abduction and relocation as ‘two sides of the same coin’ and reflected upon the success of the Hague Convention on International Child Abduction as an international response to the threat of child abduction and called for debate upon an international agreement to ensure the same principles are applied in relocation cases worldwide. The Judge suggested that in order to achieve this international norm it would be necessary to moderate the current law in England and Wales and to place greater emphasis on the obligations of the primary carer to maintain contact between the child and the non-resident parent.

The timing of Lord Justice Thorpe’s remarks coincides with the Centre for Family Law and Practice Conference on International Child Abduction which commenced in London yesterday. The relative ease with which families are now able to relocate abroad ensures that these cases will no doubt become more frequent and debate is therefore welcomed together with international guidance to the Courts in recognition of the onerous task inherent in this delicate balancing exercise which so crucially impacts upon the lives of modern families.

Couples frequently purchase their shared home and commonly their most valuable asset with little or no discussion as to the extent of their respective interests in the property. The Court of Appeal recently reflected upon the law applicable to cohabiting couples and upon the Courts approach to determining the parties’ beneficial interests in respect of their property (whether owned in the parties’ joint names or one party’s sole name).

The Courts seek to uncover the parties express intentions with regard to shared ownership yet it appears few couples enter into any verbal or written agreement at the time of purchasing a property or moving in together. In the absence of any such agreement the Courts adopt a ‘holistic approach’ to the ‘whole course of dealings’ between the parties in order to infer a common intention to share the property from the parties conduct. Therefore beneficial interests may be deduced from examination of the parties’ financial contributions to mortgage repayments and household outgoings. Most recently the Court was faced with unravelling the parties’ intentions some 12 years after their separation in the case of Kernott v Jones. In this case the change in the parties’ attitudes and approach to the property post-separation created difficulties in evaluating the parties course of dealings.

The case was described as a cautionary tale as the Courts emphasised the dangers inherent in the failure of cohabiting couples to ‘address their minds to the size and fate of their respective beneficial interest on acquisition, separation and thereafter.’ Critics suggest reform of the law relating to cohabitants is long overdue.  The Courts aim to ensure a fair outcome in the circumstances however the Court’s focus upon inference of a common intention to share ownership in the absence of express agreement permits a large degree of uncertainty. Whilst legislative overhaul of this area of law is not forthcoming it is essential for shrewd couples to heed these words of warning from the Courts and take matters into their own hands by entering into cohabitation agreements.

Proposals to introduce an EU regulation to determine the country in which couples of different European nationalities are able to issue Divorce proceedings (as considered in a previous blog of 6th May 2010) have now been endorsed by Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

There is considerable momentum for change to the current system to simplify the rules applicable to cross-border divorces and allow couples to elect the country where their Divorce will be heard. This choice will be subject to the parties establishing a ‘close link’ to the Member State (such as long term residence or nationality). It is intended that these reforms will reduce the risk of one spouse rushing to issue proceedings to ensure a Court of their preference is seized with control of their Divorce.

These changes are welcomed to ensure greater certainty and predictability for international couples and ensure spouses are not able to exploit an unfair advantage. The impact of these reforms will however be restricted as the regulations will only be binding upon the14 participating Member States.

The reforms must now be referred for consultation before the EU Parliament and we therefore wait to learn if this legislation will be passed.

The case arising from the separation of husband and wife Lisa Tchenguiz and Vivian Imerman recently reported in the press involved two brothers who took matters into their own hands to assist their sister Lisa Tchenguiz in protecting her financial position following the issue of Divorce Proceedings. The Tchenguiz brothers, who worked alongside their brother-in-law Mr Imerman, accessed and removed a large quantity of material from a shared computer system totalling 7 lever arch files supplied to the wife’s solicitors. Whilst the Judge criticised the conduct of the brothers as ‘extreme’ behaviour, the circumstances of the case nonetheless highlight the scepticism rife in the matrimonial context where spouses are frequently cautious of accepting disclosure provided by their partner at face value where trust has so often broken down between them.

Where matrimonial financial matters are concerned there is a clear obligation on both parties to make full and frank financial disclosure of all material facts and relevant financial documents however the parties may be reluctant to rely on their spouse adopting an honest and fair approach to their disclosure obligations. The higher the stakes the greater may be the suspicion of concealment of assets as in the case of Lisa Tchenguiz where a multi-million pound matrimonial pot remains to be divided between the parties.

The Court sanctions for non-disclosure by either party to proceedings include costs orders against the offending party attributable to their non-disclosure. However faith in the current system may be undermined when it is considered that the majority of cases result in a negotiated settlement without the necessity to revert to the Courts and such orders do not therefore come into play.

In the recent case of Vaughan the Court of Appeal have clarified the approach to be adopted when considering the continuing claims of one party against an ex-partner who has remarried.   

 In the Vaughan case at the time of appeal Mrs Vaughan was 66 and Mr Vaughan was 71 years of age.  In 1985 Mr Vaughan had remarried and his second wife was 15 years younger than him.  The issue arose because Mr Vaughan’s income reduced as a result of poor health and he therefore exercised his rights under his pension scheme to have an annuity paid to himself and his second wife during their joint lives and upon death at the same rate to the survivor (approximately £100,000.00 gross per annum).  The Court of Appeal were asked to consider the lower Courts decision to discharge the maintenance order made in Mrs Vaughan’s favour back in 1989 in the sum of £15,175.00.  The Court of Appeal felt that the decision of the lower Court was unduly harsh to Mrs Vaughan and allowed the appeal but rather than requiring Mr Vaughan to continue with maintenance payments the Court of Appeal instead ordered an additional capital sum of £215,000.00 to be paid to replace those maintenance payments.

The Court of Appeal gave guidance that when faced with the competing needs of the first and the second families the Court must strike a balance between the obligations arising from the first family and the perfectly reasonable and not unusual wish to embark on new relationships.   The obligations to a second wife cannot be given priority over the claims to the first wife and the Court will not for example adjust the award by assuming that the second wife has a 50% claim on all assets and income.

The latest available statistics reveal that in 2008 37% of marriages involved couples where at least one of the partners had a previous marriage.    The Vaughan case emphasises once again the need wherever possible to secure a full financial clean break when the first marriage is dissolved.

The legal battle between husband and wife Nicolas Granatino and Katrin Radmacher was heard by the Supreme Court on 22^nd March 2010.  The Judgement of the Supreme Court is eagerly awaited by all family lawyers and the public.

Brief Facts:-

Extremely wealthy German heiress Katrin Radmacher  (said to be one of the wealthiest women in Europe) married French banker Nicolas Granatino in 2007.  The parties signed a Pre-Nuptial contract.  The couple then had two children before they separated.  During the marriage the husband gave up his £300,000 per annum employment as a banker to pursue his doctorate and is now employed as a researcher for only £30,000 per annum.

The Court of Appeal reduced his original award from £5m to £1m.

The Court said that it was giving “decisive weight” to the Pre-Nuptial Agreement.

Nicolas Granatino said that he should not be bound by the Pre-Nuptial Contract because Katrin Radmacher had not disclosed her true wealth.  He also claims that he will not be able to manage financially on the reduced award.  Nicolas Granatino is appealing to the Supreme Court.

Any person who signs a Pre-Nuptial Agreement at this time cannot make the assumption that the contract will not be binding.