FAMILY/MATRIMONIAL: An Introduction
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Big events in the world continue to dominate and percolate into family law.
Legal Brexit – what changed?
Everything changed, or did it really, when as of 11pm on 31 December 2020, Brussels II bis ceased to apply to the UK for new divorce cases. The EU Maintenance Regulation went the same way.
It is not as simple as saying the race to court has ended.
The decisive rule from an English law perspective is now the closest connection test under forum conveniens rules. But matters do not end there. If you issue a divorce in England first, you may still win an unofficial race to court. But why? First, because the courts of EU member states are, we are told by lawyers there, still respecting race to court rules as if all the UK’s three jurisdictions were still part of the EU. So, the foreign judge will allow the English court to proceed if first in time. Second, the English court may in fact proceed because the other party once served loses the psychological will for a challenge abroad. Act fast and be first. It still really matters.
But if you are second in time, it is more complex and still all is not lost for a client trying to secure England and Wales. The foreign court will proceed, but not necessarily so if a litigant is blocked by a forum conveniens decision (and maybe an anti-suit injunction) of the English court.
For the enforcement of spousal maintenance orders in new cases clients will need to go through more cumbersome registration abroad. This will remain the case unless the UK is allowed to join the Lugano Convention. But that is a question of politics and what the political leaders of EU Member States will allow. No joy there yet.
For prenuptial agreements Brexit changed nothing. EU regulations (the EU Matrimonial Property Regulation) allowed recognition of English prenuptial agreements before Brexit and still do today.
For children cases jurisdiction just got more complicated. The Hague Convention 1996 now sets jurisdiction rules for the UK with all EU Member States. It introduces a concept of roving jurisdiction that moves with the child, even if proceedings in the left-behind country have not ended.
COVID-19 and going digital
The chatter in the profession at the outset of the pandemic was of “Barder” events where courts would be invited to set aside recent orders where valuations had plummeted. But we consider this to be the dog that did not bark. Why? Perhaps because loose monetary policy in developed economies has kept asset prices high.
In some case assets prices have fallen, for sure. But Barder challenges we can safely now say will be few and far between.
The biggest changes from COVID-19 have come from the way we as lawyers practise. Digitisation of our practices (the cloud, no more paper, remote hearings and remote client meetings) continues to gallop along and change all that we do.
Spurred on by court delays (the cause? massive Ministry of Justice real terms cuts since 2010) the wealthy are increasingly turning to out-of-court methods of dispute resolution. They are willing to pay for a dedicated judge who is not time poor, for a judge of choice, and for shorter waiting times.
Two notable boosts to these out-of-court processes this year have been the decision in Haley v Haley, and the broadening jurisdiction of arbitration in relation to children matters.
Haley v Haley has lowered the bar for an appeal of an arbitration award. It now need only be shown that the award was wrong. This is the same test to be applied as when challenging a court-based judgment. This removes the fear of “unappealable” arbitration.
Arbitration of children matters had traditionally been limited to child arrangements and discrete issues. However, the Children's Arbitration scheme has been expanded to cover international relocation to countries which have signed up to the 1996 Hague Convention (so the entire EU, USA, Australia and Russia for starters).
Oh, and not a small thing, but there is a push amongst both solicitors and barristers to ensure increased representation of women in private judging roles. From what we hear this drive is succeeding.
Dubai ruler targeting ex-wife with spyware
In news reported this October the President of the Family Division has found that Sheikh Mohammed bin Rashid al-Maktoum, ruler of Dubai, hacked his ex-wife, Princess Haya, as well as her lawyers, using NSO Group’s Pegasus spyware. Sir Andrew McFarlane ruled that this was an unlawful abuse of power and trust.
Princess Haya had fled to London in 2019 with their two young children and has been engaged in lengthy legal proceedings regarding the children and finances. Sending a chill down the spines of family lawyers engaged in this level of work, it was revealed that as well as a number of Princess Haya’s close connections, Baroness Shackleton, who has been representing Princess Haya in relation to her matrimonial matters, was one of the lawyers whose phone was hacked using spyware from the Israeli NSO Group.
The senior courts continue to produce judgments on costs funding (interim) and costs awards (end of case).
Re Z recently produced a second judgment on legal costs funding. The guiding star is still equality of arms, but woe betide any litigant overspending their budget under a costs funding order and coming back to court to seek the overspend.
The courts continue to criticise litigants who pursue unreasonable strategies. Excessive or unreasonable litigation may sound with a penalty costs award (see E v L this year for example). Or else the court may refuse to order the wealthier party to pay their opponent’s outstanding legal bills.
We consider there is a need for more Court of Appeal or Supreme Court guidance in this area. The law is currently unclear despite the beefing up last year of Practice Direction 28, about bad litigation behaviour.