FAMILY/MATRIMONIAL: An Introduction to London (Firms)

In April 2023, the Law Commission announced a review of the law on the financial split of assets on divorce. The aim is to see whether there can be more certainty of outcome in court adjudications. The Commission will examine the possibility of very short, fixed-term maintenance awards and also to put prenuptial agreements on a statutory footing. Giving even more weight to prenups should be unquestionably a good thing. On maintenance, the Scots have a presumption of no more than three-year awards. But if the aim is to discourage female dependence on male breadwinners, isn’t there a better way to tackle this? What about solving the most expensive child care in Europe or more improvements in workplace flexibility for women? Also, doesn’t the Scottish-style proposal remove choice for women who may wish to remain at home as a child grows up? Does it not discriminate in financial terms against those who have taken long career breaks and cannot much later hope to secure an equal place in the labour market? Family law seems like an odd place to do such social engineering. The Commission report will be out in September 2024.

The Children Act Presumption That a Child Shall Know Both Parents

One thing which would be a step forward (progressive perhaps!) is to get on with the government’s stated intention in 2020 to review the legal presumption about the involvement of both parents in a child’s life. This is set out in the Children Act 1989, and states that the involvement of both parents will be presumed to benefit the child; but some lawyers, academics and others think this could go further and move to a presumption of shared care or perhaps something short of that. The government continues to sit on its hands about this.

Transparency in Children’s Cases – Where Are we Now?

On 30 January 2023, the Family Reporting Pilot was rolled out in Cardiff, Leeds and Carlisle. The pilot “allows accredited media representatives and legal bloggers to report on family cases, subject to strict rules on anonymity”. The pilot, which applies to public and private law children’s proceedings, aims to “enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality”. There had been widespread accusations that the family court was secretive – which prompted this pilot. The MOJ has announced funding to evaluate the success of this project.

The Supreme Court Rules on Parties Who Die During a Divorce

In Unger and another v Ul Hasan, the Husband and Wife had a long marriage. In 2012, the wealthy Husband obtained a divorce in Pakistan. The Wife lived in the UK and applied to the courts of England for financial relief. The Husband died in 2021, before the final hearing. The Wife sought to continue her claim against the Husband’s estate. The Supreme Court ruled, in June 2023, that the Wife may not pursue a claim where the Husband died midway through the proceedings. The court stated that the relevant divorce Acts (of 1973 and 1984), where financial relief is sought, can only apply if both parties are alive, since that is what Parliament intended when they were passed. Actually, in many cases, there is another Act available which allows the spouse to sue the estate of the deceased. However, in Ms Hasan’s case, the question which she lost was vital since her late Husband lacked the English connections to allow her to use that other route. So, in these rare cases the only option is for a spouse to proceed, if they wish to divorce an unwell or elderly spouse, and perhaps to try and cut an early financial deal, rather than risk going to trial later.

Who is an “Expert” on Parental Alienation? 

The senior family judge in England and Wales (Sir Andrew McFarlane) ruled in February 2023 (Re C (‘Parental Alienation’)) that there is no difficulty, where the circumstances justify it, in instructing an unregulated psychologist to give evidence about parental alienation. The original judge was perfectly entitled to do this and the “expert” was entitled to comment on matters of fact which are not part of their core expertise. What was really important in parental alienation cases was to know this was a question of fact, not a diagnosis of a psychological state in the child or of the parent. In other words, the court had simply to ask whether parental alienation had happened, as a question of fact, and if so then to evaluate what was its impact on the relationship of the child with their parents. The mother could not appeal the findings against her just because the psychologist was unregulated.

What is the Value of a Foreign Marriage Contract?

It is now some 13 years after the landmark Radmacher decision in the Supreme Court, which gives weight to prenuptial agreements. In CMX v EJX, a November 2022 decision, the High Court upheld a French marital agreement despite the lack of any formal financial disclosure, or independent legal advice. At the point of signing, the French/Lebanese/British Wife was the breadwinner, and the French Husband, a student. Fast-forward 26 years to the split, and the roles had very much reversed: the Husband held nearly GBP20 million of the couple’s approximately GBP24 million marital assets. Advice provided by the shared notary to each spouse in the signing meeting satisfied Mr Justice Moor that each party had a full appreciation of the contract’s importance. They came from cultures where they are routine – a factor the English courts now accept as influential. So, the Wife secured only 40% of the assets, around GBP3 million short of a 50% share, which she might have got under the English-law principle of sharing.

Child Support Maintenance in High-Income Cases 

Mr Justice Mostyn has, in James v Seymour, refined his earlier approach to the calculation of child maintenance top-up where there is a high-earning payer involved. Currently, the “Mostyn Formula” is widespread following CB v KB [2019]. Where a paying parent earns more than the statutory limit of GBP156,000 gross per annum (the ceiling for government Child Maintenance Service intervention), but less than GBP650,000, his mathematical formula is applied, and a suggested top-up figure is produced (calculated at just under 10% of gross income in that bracket). Statistical research showed there are now 629,000 tax payers in that income bracket. The formula has attracted criticisms: that the formula produces the same figure no matter how many children exist, and that it leads to awards substantially greater than the courts would likely otherwise award. The judge addressed these by adjusting his formula to one calculated “per child” and by saying that in future in his view cases should also take into account child care responsibilities for other children in the payer’s household, and take into account school fees paid.

Finally, there is the extraordinary (and important) ongoing litigation in Simon v Simon, with a litigation funder intervening. The Wife and Husband reached a financial deal earlier in the case, immediately prior to which the Wife and her legal team parted company. The litigation loan she obtained (now over GBP1 million including interest) could not be enforced against her because under the agreed private deal (later rejected by the court), the Husband gave her a lifetime interest in trust in the property she was to live in – so she actually owned no asset outright to pay the lender. The Court of Appeal has ruled that the lender can continue to intervene. A possible next scenario is that the wife could discontinue the divorce finance case and still cut a private deal with her husband outside the courts. There remain actions the funder can bring against her (bankruptcy) and against the husband (for causing the loan contract to be breached). The court said there are strong public policy reasons why litigation funders should be supported and permitted to intervene in a specific case like this.