Hello. Welcome, everybody wanting stuff to my mood on my solicitor and a lecturer on I'm pleased to welcome you to today's session through data law. This is a course where I'm going to be taken through the family law in practice and this is Session one. And with the sessions, what I'm going to be doing is providing you with, as the learning outcomes provide here with a practical discussion of both case law and also certain statutory provisions relating to various aspects off family law matters. Andi Over the course of the sessions, this three sessions in total under for three hours in total and I would be looking at various elements covering provisions relating to matters related to finances. Also matters related to cohabitation, particularly a stop or claims. Also, marital breakdown, particularly looking at the proposed with former to divorce Under will also be looking at some aspects of personal protection, particularly the domestic abuse bill, and also had its links in with some aspects of Children matters. In particular. It's on completion of the three hours you will be able to understand the importance of the updates surrounding family and Children or related matters on in particular be more familiar with the case. Lawrence Dust Re Developments in the various areas, particularly finances. Cohabitation, motor breakdown, personal protection on also Georgia matters. So I'm going to be looking at all these different areas on focusing, particularly in this first session today session. We're going to be looking at financial remedies and then be falling that through in the second session, but also in a second ship session. I'll be looking at some elements off divorce and particularly the reforms relating to divorce on. Then, in the third session, I'll be spending more time looking at injunctions and personal protection. Particularly looking at the position with the domestic abuse bill of 2019 on will also be looking at some aspects of cohabitation and in particular, as stop all claims on really throughout all this these areas I'll be looking at a case law on statutory developments. Also, I have referred to a fair bit of statue material on dissecting, dissed, acknowledged as being protected by Crown copyright north of Dfe as corporate orthe on the lawn procedures as of September 2019. So, like so I'm going to be starting with looking at D position with finances on today section looks at financial remedy matters and particularly update and also looking at some of these significant cases over the last year or so. So there are some cases I'm looking at insofar as 2018 are concerned, given how significant they are going forward. So I'm going to be starting now with this case of R and K. This is really looking at the position with add backs when one alleges dissipation off assets. This was a case of 2018 on the case itself involved one whereby it was a 25 year marriage that the parties, both husband, wife lived. A very luxurious lifestyle on the business did get into difficulties. Onda husband was claiming that he his business, wasn't doing as well as what he was previously doing on Bond. The wife have argued that the husband was somewhat fabricating, Ah, the position and in fact his business was not as unsuccessful. That's what he was making out to be. She claimed that this was largely because she did. He didn't want to really provide the level of provision financially for the wife is what would have been otherwise provided and therefore the question. Was it on the facts of this case? Whether the husband and also his business associates word in fact exaggerating the liabilities in relation to business with a view to defeating the wife's claim for financial relief? And the wife did claim that the husband had in fact, dissipated assets on demands that he did, she was argued, should be added back the amount that the court would award the wife by way off a lump sum set aside, a wife was arguments on her lawyers prepared a Scot shed your particular rising, the items of expenditure which he claimed had been dissipated by the husband on which, in her view, should be added back to the lump sum that should be awarded to her on over two years or so that the wife in particular said that have a husband who she was, of course, divorcing had spent a total of just over £400,000 on his former girlfriend, for example, me and she said that this particular amount should, for example, be added back as well. So she said that there were various family assets on the husband had dissipated significant amounts loans in the region of close to £400,000 onda. Also did was various bank accounts and including the amounts which had not been unaccounted for. She said in her schedule that the amount that the husband had dissipated was a staggering amount off 8.5 million second, see quite a significant amount off monies. The husband, of course, provide replies to the schedule of deficiencies, and he provided a response to the ad back on Um, do I schedule assessed the party's joint assets to be worth only in the region of some 3.6 million, off which some three million were attributed to the husband and about £600,000 to the wife Was the husband said that the natural liabilities off worth off approximately 1.3 million on wife's assets were less than what she was suggesting otherwise. Now this is one way the court and wanted to look at the position with dissipation of assets on the wife was arguing that she had been honest in her disclosure. But the court here on the facts did say that the wife had asserted that be her husband had been fortunate. Left live a very luxurious lifestyle. Doing a marriage lived in substantial properties. That nine and more expensive fear course, including a Lamborghini Ferrari, for example. Many personal number plates. They had housekeepers and drivers. They had houses in London and also in France. On that, like cider, lived a very, very luxurious lifestyle. The two of them on that as us for their Children at the position was the two Children were currently in further education on um, the husband has spent a lot of money, certainly on donations. Also, not a wife did argue that her husband was, in fact, still continue to live a lifestyle, which he did not, uh was really wasn't fitting in with what he was saying. I e One minute he was saying that he was in financial crisis, but when he was still living this very luxurious lifestyle, so therefore didn't really stack up in that regard. Andi. He was very much in arrears with the maintenance pending suit order that had been made to cover thier the overheads in relation to marry toe home on um, the wife in particular, argued that what the husband was saying in terms of having had actually been in financial difficulties Did it stack up because, for example, he had decided to rent an apartment in May faII, for example, at a cost of some 1.5 £1000 per month rather living in the existing Knightsbridge flat, which was really worth less. So again, it makes you think that if he was in financial difficulties, why was this burning this kind of money? For example? On Also, Wife claimed that on one occasion her husband spent a lot of money on a dinner party. She claimed it was in the region of about £130,000 with, he said, it was close to 60 £60,000. But of course, as you can see, this was still nonetheless a significant amount of money. So in terms of the amount that the wife suggested should be added back, she was claiming it should be a figure of about 1.2 million as well as paid getting paid back the maintenance pending suit careers also. So what is the position with at back when it comes to dissipation of assets? Well, this is where the court referred to a number of cases that Martin and Martine, for example, where in this case, the court did say that a spouse should not be allowed to really dissipate away assets by extravagant living goal? Really speculation on declaim a greater share, what was left as to what they would been touched so clearly has your level of responsibility on the part off declined involvement. Born, for example, the court did say that one has to look at redistribution very cautiously by looking at any evidence off dissipation. For example, in the case of M A P against MFP, for example, the court did say that you need to take the spouses. You find them at the good with the bad sort speak, and therefore a spouse cannot take advantage of all the good characteristics of their partner. Lost really disapproving with the bad characteristics. So again, many of you remember this is effectively what's known as the eggshell skull principle that some of you will be familiar with. So the husband said that he was, uh, irresponsible would away, which has spent the money. But he wasn't done deliberately to defeat the wife's claim for financial relief. Onda husband had made no good reason for failing to have had made a maintenance planning suit payments under court did say that this wasn't a case where her husband was deliberately failing to pay their is off the maintenance putting suit the court decided would be payable Onder. The court also said that this amount would be added back to a lump sum payment awarded on deciding what amount the lump sum should be. The court decided to take into account the fact that the areas of Maine MPs stood in the region off close to £350,000 on with interest. It's matched about half a 1,000,000. But a court did say there was a risk of double recovery of both the dissipation and also the unpaid MPs. Payments were added together to lump sum ordered and that was one of problems with this and therefore what the court decided on the facts was that husbands conduct was on the facts of deliberate dissipation of assets at the point when he should have been paid. White Heard wife made his billing suit, but the court did say that if he was to include this figure claimed back for back as well as the full hurries, air maintains pending suit, then they would effectively be a double recovery. That is to say, had the husband paid the arrears on the MPs, he would have been able to spend money on himself in the way that he did on there from that basic court wasn't going to be ordering double recovery on gun. The fact he had a court decided that the husband should pay in a manned by way of a lump sum to the wife off £2 million. Okay, so you can see it's a very important case because a court can, of course, being in the concept off back, particularly if there is evidence of dissipation of assets as they have been here. That brings us on to the case of had Dickinson, or rather, the case involving the Hodgkinson ordered. It's the case of Syringa. They can forge against hunger Duke Average. This sees on the appeal relating to the Hodgkinson order case. This is also a 2018 decision which was handed down by the Court of Appeal leaving judgment by Lord Justice Peter Jackson on Essentially, this was a case where by the wife was seeking to prevent the husband from pursuing his appear until such time as yet paid her the outstanding maintains pending suit on also Legal Services order. And that's effectively, what the Hodgkinson or Dres, so that the wife was arguing that the husband should not be able to perceive his appeal until such time as he's paid the outstanding orders that it be made. I, PS and Legal saves his order, and this is really falling de Hodgkinson case in that regard and in the had concerns case itself, uh, it one was one whereby the parties have been divorcing and the parties had bean trying to resort of finances with indoors. Pursing of the husband had to be taught to pay maintenance, paying suit and costs. He paid maintenance but not the cost. And then the wife claimed on increased maintenance for legal services order on the husband that made no payments on, uh, here on the facts. The husband made no payments under the order had been made for the MPs and legacies. His order on the wife argue that this fairly had caused a significant difficulties and that she was dependent upon this maintenance for living expenses in that regard and also for legal services order to meet her costs off litigation so effectively the wife like say, was claiming dismissal of the husband's appear on the issue of jurisdiction, which is what he was planning on until such time as he had complied with the orders for payment of MPs and suddenly preserves his order. And, uh, the wife therefore like, say, sort dismissal of the husband's appeal, which was appearing on jurisdiction issue until such time as he paid. This is where those reference made to D. Hassan Hassan number one case. The 2017 decision whereby the court did say that's an order is too corny in because it goes directly to a litigants right of access to a court on it should not therefore be common. It's a case management order of last resort where litigant is basically in contempt rather than contempt. In terms off committed for Proceedings of Contempt on the court did say that disorder disk so called Hodgkinson order can be made, but it should be. Seeing more was an exceptional order on there were various conditions that need to be met him. Essentially, the conditions were one has to showed up to respond ties in this case, the husband was in contempt, It was deliberate and it was continuing. There was an impediment to the course of justice and was no other realistic and effective remedy. One also has to showed up disorders proportionate issue on that her it's necessary to remedy on. The court here did say that this had concern orders of a flexible order with a range of sanctions. Andi in had concern itself. The quarter appeared refused to hear the mother's appeal until she had returned the child to England. Us of what happened in that particular case now on the facts were the conditions in the Hopkinson case made out were here. Was the husband in contempt? Yes, he was because he was in breach of the orders for the legal saves. His orderly MPs was his consent to live with contempt, deliberate on continuing. The court said yes because he really have not complied with it. It was done deliberately was then impediment of course, of justice courts that yes, because complies with the legal services order, was essential, starts to neighbor the wife to then be able to have legal assistance to participate in the husband's appeal. was the another realistic option under course have no, because the prospect of enforcement against her husband's assets could not be take place within the appeal itself. Did he order sort by the wife? Go further than necessary? And this is where the court said yes, but only to a limited spent extent. And that is. The court said that the fact that her husband did not pay the maintenance and illegal saves his order was not an impediment to the course of justice on the court here. Dis distinct distinguish between the unpaid costs of maintenance on the one hand on all Saudi unpaid legal services. Already on the other, the latter I. The failure to pay the legal services order did impact on on the way which justice or start with where was not paying the Maintenance Penney suit did not, and they form the facts. The court did say that a non payment of the S standing MPs was not an impediment, of course of justice, but D nonpayment or legal services order water level effectively. The court made what's known as a conditional order on that is the court made an order on the basis that the court would grant a wise application and made it condition of the husband being allowed to pursues appear related A jurisdiction, Uh, but on the basis that who has to pay the sums outstanding under the legal services order, together with the wives costs of the application which were assessed that just over £11,000 on making a bandit figure of £140,000 in total. So this payments to be made by a set date and if you felt to do soul journeys appeal in relation to a jurisdiction point would actually be different, dismissed without further order. Okay, so you can see the thinking behind that so effectively, a conditional orders made so he would only be allowed to proceed appeal if, of course, he made these payments in relation to the legal saves his order, which he had previously been ordered to make in any event. Now that then brings me on to this issue surrounding judicial separation proceedings. Many of you will know that judicial separation proceedings are not common. We don't apply for these very often, and often the may well be if they are sorted situations whereby parties may be opposed to divorce on religious or cultural grounds. Off course it's possible to go for decree of judicial separation in situations where the parties are not have not been married for long enough. As you know, under Section three, subsection one of much one of cause that 1973 It's not permissible to divorce for the 1st 12 months of marriage, but sometimes it may well be necessary to apply for a decree off judicial separation. But an issue in this case a are on J. R. Was. This does a financial order. So financial consent order, which may be made in judicial separation pursuits. Does that prepare bit? That person I know. Indeed, the other person from then later perceived your financial claim in any later divorce proceedings. And that's what a. R. J R. Fe much looked at it. So this was a high Court decision, and, respectively, it was one whereby that case involved an application under Rule 4.4 of the family procedure was 2010 whereby the application was that the wife's application of financial order should be struck out on the basis that was affected vexatious on on the basis that there had been previous compromise. So this was the husband seeking to set aside a wise claim for financial order which was made with indeed divorce proceedings on the base of that, the husband claimed that the order would have been previous resolution of finances. Indeed, Js proceedings on, um, this was a case where about a husband had built up a successful business on the business was now worth in the region of some one billion U. S. Dollars. Onda parents have been married for over 40 years. In fact, that it had been a judicial separation on the parties had in fact agreed of financial consent order within Opus. Those proceedings Uh uh, those proceedings were dealt with by way of consent Husband later than some five years later lodged a divorce based upon five years separation. And this is where within laws, pursues the wife, then lodged her application for financial order. And this is where the husband and applied the number 4.4 to see to strike out the application by wife on the bases there. He said it was vexatious. It was duplicative because finance said it would have been resolved on Day four. They had been proves compromise. So what was the wife's arguments for? Why she should be allowed to pursue the financial ordered in divorce proceedings? Well, she said that first and foremost, they had been very limited disclosure between her husband, Onda. She said they had to be limited clothes. She said that she had no idea what the husband was worth one day sort that judicial relief proceedings and compromised on the finances. And she said that an agreement had been reached. But there have been very little disclosure within North proceedings in terms of the consent order in relation to do the show relief proceedings. The order had provided by wherever recital that, notwithstanding the absence of full disclosure from the respondent husband, the parties had in fact agree terms in settlement toe petitioner wives claim for relief. And also it set out that the wife had in fact received independent legal advice before she agreed to terms of the order. Okay on the recitals also provided that the petitioner on the husband agreed that the financial provision to be ordered was full of final segment of any claims that she might bring engaged to this moment in any jurisdiction Okay, So the she was this dis consent order that may went into was it only to cover the judicial separation proceedings? Or was it to cover future proceedings such as a divorce? Also, why? I said it was only there to cover the judicial separation, pursues what her husband said it was to cover any proceedings whatsoever and therefore the subsequent divorce proceedings. And therefore on that basis, hey said that she should not be able to pursue the further financial order application, not a court did say that judicial separation proceedings are uncommon on that. These are relatively uncommon those practicing For years we have seen judicial separation perceiving more often, but of course that they are not very common. It or your husband did argue that the wife had, in fact, lost her opportunity at her chance to seek of further orders of Js. Proceedings had led to a full of final settlement, so he said she was not able to pursue this onder in the consent order of the divorce eso in a consent order for Js proceedings. There's no mention a tall off a divorce and it's a financial award was intended to cover divorce proceedings than the court did say that that this listers would have ensured that this was included in the consent order doing the dude J s proceedings. So therefore, the court on the fax was satisfied. In fact, on the facts. Divorce was not really in the forefront of the party's minds when they settled under finances in relation to the Js proceedings. And, um, the court decided that Js financial consent order Therefore his only intended to cover Js proceedings and not future proceedings on the divorce was not on the cards. When a consent order was agreed on, a party negotiated an agreement which was only like, say, going to be covering the Js proceedings and it would be hard to really work out. What needs were in the absence of full of fact disclosure by the husband doing the Js proceedings, and the wife did was clear and husband adamant that in the Js pursuing, she reached agreement in the absence of full of front disclosure but a husband on there from that basis, the court was mind to accept Weiss argument on their fund. The fact that piers consent order ancillary to the Js proceedings was not intent to cover divorce, and neither party thought it would, uh and, um, should wife. On that basis, why shouldn't be allowed to pursue her for financial claim on that basis? So the court was not prepared to strike out twice application on the fax on demand on the facts. The wife, therefore, was able to perceive older eso the application about a husband for strikeout under Rule 4.4. That was, in fact, struck out. So conceits. A very important case which really hammers home issues surrounding, UH, consent orders and what was agreed or otherwise. Now that brings me onto his case off Cowen and others on. But this really is a case which looks at a claim made by the wife against the estate of a deceased husband on the question really is will look or allow a claim by wife against your state over DC's husband, which is made more than six months after the issue off the grant off probate, as in this case. And so just in case of Cowen and others just 2019 decision handed down in the High Court of Justice earlier this year and it was an application which was made by the climate wife under Section four of the Inheritance Provisions for Funding Depends Act of 1975 for permission to make a substance of application of the Section two of this act against the estate of a deceased husband. Section four specifically provides that any application of the Section two cannot be made except with the court's permission if it's made six months. If it's may sorry, after six months of expired from when the ground was issued. So there is very much that six month provision within which it would lodge the application after Grant was issued here. The wife's application was in fact made some 17 months after Grant was issued, and therefore it was many moons out of time. So would have application at be entertained by the court or otherwise. Well, this is where the court did say that there is a reason for the six month food, and this is what a court referred to the case of machine and Costa. For example, this case of 2006. Uh, and, uh, this limitation period is important, and effectively six months is there, too. Ensure that although the court will sometimes allow plays be brought outside, particularly if there is a delay. Uh, in dealing with probate. The person purpose for six months is to avoid unnecessary delay in the administration of estates to be called by people bringing proceedings under the act many months down the line. So there was a very real reason, an important reason to limit people's rights to bring claims within six months and only exceptional to go beyond that if there was good reason on the limitation period was also there to protect beneficiaries from being faced on by claim whether or not the estate has been distributed in the circumstances. But of course, that doesn't mean that the courts will not allow one to claim at a time. And that is possible on what kind of factors would record consider in deciding that what this is. Where the case off Berger and Berger comes in this case of 2013. What of course said that Section 10 does not give any, so Section four doesn't give any particular guidance as to when the court will allow the extension that the discretion to lie to claim outside. But some of the factors are in particularly claiming to a Z honesty shows sufficient grounds for granting permission out of time, and one has to look to see whether the claim and on a plate contracted promptly. Under circumstances they had done what they could have done to pursue any action where negotiations begun within this time limit. Has the estate been distributed? Before the claim was notified, her defendant on what dismissal would claim leave the applicant without recourse to the funds. So on the facts here. This was a case where by this case, of course, was the case of Cowan and Cowan. In 2001 D assets were shared at that stage between the former husband and form wife from husband and rebuilt Hiss hiss life on. When he died, his estate was worth some 60 million Onda. Basically, this was a case where by the disease was devoted to claim and suddenly he, you know, did cohabited. For many years he was diagnosed with a brain tumor, which is fatal on uh, they decided to marry certainly after he made a will with a letter which she's and he died a few years later, he was very much devoted. The claimant and in his will he left us considered romantic to the claimant. But he decided not to leave the claimed everything, but instead left someone into trust with life interest to, he said. His Children and step sons and a daughter in law on the position with the first limb of the test, therefore was would claim it succeed on the basis that had she demonstrated that he could reason for why she delayed bringing a claim, and she said that she wasn't aware of the six months through by her lawyers. But the court said that they wouldn't accept this because City by having a taken legal advice, the first thing the lawyers would advised about his limitation, Piers that, of course, was not prepared to accept this. As for the second limb of the test, which is at a claim of satisfied a court that she has inarguable case full relief, it was argued that she did not have the she did not have the outright ownership of the assets and therefore in control. If you venture was very much at the hands off the trustees in terms of what she would be provided with, but the court did say that this argument would fail because this effectively would mean that every person would be very much effectively at the mercy off the trustees in these situations to be up to claim relief. And this would differ effectively. Introduce a former four special airship amount of Lloyd not regards. The court was not prepared. Teoh enabled the claimant to succeed, and in fact, the court did not feel that she even succeeded under firstly Monday for the debt. Need to go into a second lemon seem whether or not she had a substantive argument. Another god. So again you can see a very important case. Must wonder. Hammers home the position with applications off this nature. Now the other big change, of course this year is we've seen finally, some new legislation which has been dropped in lying off the act solid a case which was decided last year in relation to civil partnership for up six sex parties. And this was a case last year. You remember the case of R on the Application Stein Field in Cadence, Consecutive State for International Development. This was a 2018 case, and you remember this was a case involving the manner lady who did not wish to enter into a marriage. They were very much opposed to the traditional, his topic called connotation, that marriage had would religion on that day non less did wish to have rights, which are kin to marriage and therefore day wish to enter into a civil partnership. But their argument was that the Civil Partnership Act of 2004 which came in December 2005 they argue, discriminates against opposite sex couples and numbness. So a partnership act only allows. So a partnership between persons of the same sex on day was successful when they took the matter order way to the Supreme Court and the Supreme Court decided. And they favour that Section one of Section three Other Civil Partnership Act 2004 which prevents an opposite sex couple for mental into civil partnership, was in fact incompatible with both Article 14 of the European Convention on Human Rights and also Article eight of the European Convention Article 14 which prohibits want from discriminating on also Article eight, which gives one dry to privacy on family life. So that led to the Supreme Court, therefore declaring the civil partnership act is incompatible, which therefore of course, placed pressure on, uh, England Wellston to look at a change in law in this area, which has then led to at the implementation off the Civil Partnerships, Marriages and Deaths Registration Act of 2019 Onda. This act was 12 fact of this year and this Active and I covers civil partnerships up success. Coppers will also covers other areas as well. So it's an act which is designed them to make provisional about first of foremost, the registration of marriage on also, the extension of civil partnership to couples will not off the same sex, and also it looks at the position to report on the registration off pregnancy loss. So just going through some of these elements, the act is them looking specifically then at the position of extending civil partnership. Now 22 persons who are not on the same sex, they will be eligible to former civil partnership in England, Wales, provided they would be introduced. So, apart from the question of at sex, of course, they would still need to satisfy the court off other issues such as behaved two degrees a relationship concern guarantee affinity so there's those aspects that age, of course, exterior over and different, making sure that the other requirements are clearly met. Andi regulations, which will be accompanying at the this act, are due to come into force by the end of this year. At present, by the 31st of December, 2000 and 19 underfoot of regulations which will help to assist this are due to come into place, like, say, by the end of the year on some of the other provisions are the regulations are due to therefore make provision to relate in relation to other matters. Has relation to, for example, parenthood on parental responsibility of parties to serve a partnership on also the application by partners of a Partnership for General Recognition Certificate and also the financial consequence of civil partnership in these types of matters. Okay, it's going to be a number of issues there on, um, one of the other things to bear in mind with December punches margin. Desk registrations, attract of 2019 is the secretary of state is to make arrangements now for the preparation of a report on whether, and, if so, how the law should change to acquire two or permit the registration of pregnancy loss, which cannot be registered with a stillbirth under the Birth and Death Registration Act of 1953 and this active fires. The pregnancy lost is one way that person's pregnancy ends and after being parted from a person of fetus, does not breathe, breathe or show any sign off life on that, therefore do is to be information obtained, but together insofar stir registration of pregnancy loss on also does the provisioned relation relating to the corners investigations and to still births. So that Secretary of State may that make a vengeance for preparation of report as to how the law should change if it should, to enable a corridor to investigate stillbirths, indoor sick circumstances so I can deal with that provision also. So we should be getting hopefully soon for more information. So any dissect I'm particularly deep position surrounding putting into effect the come again off this act, particularly in relation to civil partnership at 46 sex couples. Now I wanted it end cover the position with prenuptial agreements on meeting needs. As you know, since the Law Commission report some years back in 2014 and also since the case of that Mac of grantee. No, there has Bean the fact that the law has changed insofar as prenuptial and postnuptial agreement, so that really do both have the same level off credibility in that regard, and therefore we have to refer to these as nuptial agreements on this is a relatively recent case. This case. Why picky on McConnell is 2019 Family Court decision had it done by Mr Justice Mosque, in which looks at issue promote of prenuptial agreements and also specifically the positions running that meeting needs. It's a case where by it was a case surrounding the wife, who is aged 45 she's the great granddaughter of David H. McConnell. David Hatch. McConnell was a door to door salesman of books to what has Wise in New York. He also sold perfumes, and that led to the origins of the Avon products business, which is not 1/5 largest beauty company in the world. And the wife is the great granddaughter off David Hey, Jim McConnell. So a lot of business money business was generated from the McConnell family on that the wife was the beneficiary off to trust in the states. It was founded in the region of some $65 million. The husband, on the other hand, is aged 45 and he's the head conscious off a London hotel, learning about £35,000 per year. I had no capital, but did have an interest in his mother's home on your debts of about £100,000 had very little money beyond these earnings when they got together, and, in fact, they had been declared bankrupt. Now both parties had signed a prenuptial agreement. Her wife, of course, have a wealthy husband was not. Prenuptial agreement sort on agreement was drafted by the Weist lawyer, and so far as the husband is concerned, he was also provided with a lawyer to enable him to have independent advice. The lawyer that he had happened to be the solicitor who had acted for the wife in her divorce from her first husband's. Of course, there were issues. They're surrounding impartiality in that regard. On one of the other things was at the lawyer had provided that had been provided. Her husband was in fact an English solicitor, and therefore he had not had experience in relation to advising on New York law relating to this prenuptial agreement for which wanted to ensure that it was enforceable. That agreement itself was one whereby it was to take effect under the law of New York on, um, proceedings, therefore, were to be taken day if there was any disputes surrounding it on, uh, essentially, the husband would not be entitled to any claim when the money from the wife. Other than the fact that if there was an increase in certain properties, which one the name of the wife, then the increase would be divided equally between the parties on divorce. So that was the provision under the nuptial agreement, Onda anyway, Day signed are often nuptial agreement of all safe will have legal advice on day, married some 15 days later and subsequently had two Children. Parties enjoyed a good stunned of living. They separated, husband moved into rented accommodation and wife really was contributing six substantially towards the family on that. This was a case whereby, insofar as the increase in the value of the two properties was concerned, which is what her husband was to benefit from, these in fact had not increasingly, on the face of it. Under the terms of the agreement, the husband would beginning absolutely nothing at all. And this is where the court then decided to decide whether or not to oppose the nuptial agreement. As you know, when it comes to nuptial agreements, one would be looking at the case of that Mataric Granna Tino This 2010 case, which so we set forward a lot of key principles when it comes to nuptial agreements. One of the key things you can see in this judgment was at paragraph 81 paragraph 75 of this judgment right macro, where the court said that the court should be giving effective nuptial agreement that is freely entered into by age party with a full appreciation of its implications. Unless in the circumstances it would not be fair to hold the parties to the agreement and court on the facts would dare pull the husband to the agreement a new a number of reasons for under facts the court would not do so. Firstly, the parties had agreed that the agreement would be governed by New York law, but the problem was that there was a defect in the manner in which the agreement was drafted, which meant that it would not have legal effect. Secondly, the court was not satisfied that the husband, even at a full appreciation of the implications agreement he had not obtained any proper legal advice in relation to the law in New York. And thirdly, the court was not satisfied that the husband solicitor was certainly impartial because it could be satisfied that this lister was not compromised by virtue of having had acted for a wife in their first divorce, so, therefore not basis. The agreement was not upheld on that. The court felt that agreement therefore did not meet the needs of their husbands. So therefore the court would need to divide the assets with a view to meeting needs. Now. The court was satisfied at all the assets in this case where the region was really phenomenal to property brought in by the wife. Therefore, claim would be decided simply by needs on nothing else. It wasn't a case of dividing on the basis that needs that be Mattern. You're looking at surplus. So how would the court and decide as to what would be required in order to meet the husband's needs. What? This is where the court said that the considerations would be, for example, effect. They have been cohabiting for 12 years. Husband had made no provision himself by with savings, otherwise stand of living was relatively high. Father had a home in which he needed to stay comfortably, particularly when the Children were with him. Husband wasn't gonna be making any money, any contribution towards the main since all the school fees of the Children. And it was necessary for the husband to be adequately re housed on. The court did say that this was a case where, by the husband's needs would be such that his captain ease would been reading off some £186,000. Do you look into his income knees? And that was going to be on amount in the region off £50,000 per annum, which would be reduced upon retirement. So the wife was ordered to pay an amount in the region off 1,333,500 which amounted to about one point for $7 million. On that, this was in full and final settlement, so you can see this was a case where by the court wasn't going to be a part in a nuptial agreement, which meant the husband would have really walked away with nothing on instead to court. Therefore dark with division on the basis of meeting the husband's needs, which here on the facts man to do him getting 1.7 million. Each party had claimed costs against the other party, but the court stayed the applications for cost it wasn't necessary in the circumstances on one of the other issues in this case is the His Lordship did actually emphasize a number of issues surrounding deep position with non compliance, particularly in relation to the bundle. There was a very strong message to his Lordship gave in relation to the position with preparation of cases on also the court bundle so he can see a Paragraph 29. His Lordship said that he was dismayed of the non compliance by the legal teams in relation to practice direction 27 a of the fund re procedurals 2010 in relation to the position with Corbyn does and also the efficiency statement. Our first of February 2016. Two key provisions where T wonders have been delivered despite the fact that registration 27 a, of course on your last for one bundle with maximum 23 50 pages. Both bundles, which were delivered, contained a lot of duplication arguments, but important documents were missing. The bundles contained no preliminary documents. As you know, the bundle needs to contain case. Summary chronology for profit position statement, Essential reading list, State of issues and non indoors documents were within the bundles. There was no great judge of issues nor greed, assets scheduling nor chronology. Andi have been no attempt to try and agree this. The chronology didn't set out significant information such as details of the fathers were Lord Death. The prenuptial agreement or even a marriage on a skeleton investigation argument was filed on time, and that lawyer argued that it was fired late because the other party has delivered a bundle late. So so you can see it's a very strong message. Sent two lawyers to ensure that there was four complies with a bundle practice direction insofar as that is concerned, right. That then brings me on to this case of actor on Khan disease, a case involving the position with religious marriages in England Wells Onda particularly way the position if one has only had a knicker which is to be religious, Islamic religious ceremony what in England? A mile. So if you've had just a nick are here in England Wells, then effectively. Would that what rights would that give the parties if they did not then celebrate the marriage according to the law celebrations farce of in a Civil Ceremony? And that's what this case of actor unconscious 2018 case has looked at, which was hunted down in the family court. So the case involved the petition as reenact. I lodged a petition for divorce from her husband, Mohammad Abbas Khan, on the basis off his behavior and the wife are good that the presumption of marriage that should stand on the alternative. She said that this was a void marriage within section 11 8 off the emcee. A. So she was arguing that on really the questions that the court had is word of parties to be treated as validly married on English law by operation of this presumption off marriage. And if it wasn't if the work that God is validly married, then is it afford marriage and it's avoid marriage under Section 11 of M. C. A. 97 3 don't does not allow one to seek. A decree of nullity on the parties here hadn't into a religious marriage in Islamic law in England, they consider themselves for intense Per Caesar's on My couple Under had intentions into the wife claimed that the parties had intended to carry out the civil ceremony, but never did. The husband, on the other hand, was arguing that they were never married and have intended to be, and he said that the most entrant whether ceremony which was a religious blessing and the effects of a violent marriage, the court said, was that if the marriage is valid and then of course, one condemn pus you a financial blame thereafter. And this conveyed, of course, from significant issues such as benefits, relation of tax entitlement to pensions, inheritance tax, advance cities and also advantages in relation to other aspects such as, for example, family discounts and tickets. But if it's a non marriage on, the court did say that if it's going to be a non marriage than that can be a difficulties that no such remedy would then be available indoor circumstance. In that regard, there's no such remedy, such as the ones available for, for example, financial relief from Also Inheritance, Benefit Says have mentioned on the consequences, therefore very much at the same now. The court did say that this was a case where by the couple had lived together and had Children on. Uh, this is a case between themselves and also really in terms of, certainly involving other people for intents and purposes that they were married. This wasn't a case where they regard themselves as cohabiting dead under gone, a public mouse Sermanni There was an official it's witnessed they had mounted but had lived. A married life had been together for some 18 years. The community regarding was married. They have Children for intents, purposes that regarded recorded as married. And therefore the question was what the court regard this as a non marriage was avoid marriage if was a non marriage. As we have said that there would be no financial doubled minimum right to pursue your financial plane was it was avoid marriage under Section 11 and it would leader, possibly to perceive the knowledge decree in therefore to pursue financial claims. The court made it very clear that you wouldn't regard what dent into a value marriage, of course, because it had not complied. Do requirements for single seven minutes. That's not something the court could decide on. Confirmed that this was a valid marriage on. Therefore dish in this case was us to whether marriage for some 18 years, which resulted in four Children, was to be treated as a non marriage or whether it could be a guard is avoid marriage. And the wife did say sorry, the husband. The court rather did say that on the facts they would wish to apply very much. What's known as a flexible approach on the court said that whilst the court for city argument avoid, marriage is one which is regarded Ford from the outset, the fact is it does, of course, do allow a remedy insofar as finance is concerned on. The court did say that unless a marriage purports to be a kind contemplate by the marry Jax, it would not ordinarily come within Section 11 of M. C. A. But the court did say that you need to look at the way in which they live together to see whether or not they would regard themselves as married or otherwise. So the judge decided to apply for a much what's known as a flexible approach. Taken order. Second starts account. The judge would apply flexible approach or supplying articulated. The European Convention on the court did say that here, when one looks at the second stone sees it was understood by both of them that the husband wife were embarking on a process which was intended to include the civil ceremony. The wife understood that the husband, I certainly agreed that this so money would take place in Natural and Nick are so many defended completed marriage process was dumped, her husband's refuse or he had taken no steps, really two of age and carry through the server so money. The wife frequently sought for that to happen, but it didn't on demand on the facts given the 18 year union, of course, said that this bore all the hallmarks of a marriage and that it was public. It was witness to live together as a couple on their fault. For intents and purposes, a court regarded temp as a married couple, so they feel a judge did applied a flexible coach in the Section 11 of M. C A. And if the court did regard the marriages, avoid marriage, which they've open doorway for the wife to pursue if another to decree, which therefore in turn enabled wife them to pursue a financial orders. He conceits of a very significant case, which therefore looks at that point. Okay, that didn't brings me on to the other case that I wanted to cover today and nuts. Deep position with disclosure off documentation to sadistic Case of Thumann thumb This 2019 case This case has had quite a history, Terry, of course, because this case in the last few years has been one whereby the husband was seeking to apply Underwood 4.4 to strike how to the wise divorce, which he had lodged in England on the basis that he claimed that she had delayed in but prosecuting, divorced by way of gaining a husband served. But the court did say that there was nothing in the Family Procedure rooms which acquired service of divorce documentation by a particular date on their first longer, the wife has not strategically delayed in serving, but under fax was unable to. I have locate the husband or some four months later that that did not itself prevented from pursuing a divorce. So they for the divorce has been lodged on is being pursued in England on this particular case than this 2019 decision in this matter relates not to the position so it into finances and also disclosure off documentation. Andi, essentially to call, had made various orders for disclosure. Yeah, there were documents stored on a flash drive, which the wife claimed that she found in the parties joined safety deposit box. She said that it was password protected, but she said that the password was written on an envelope in which the actual memory stick was contained. The wife lawyers had access to flash drive in their presence. He's in a password and they had confirmed that in writing that that was the case. So the wife was claiming that at therefore, the documents on the memory stick would not. Confidential government documents are set out in the case of imminent. And as you know, everyone is a very important case which really emphasizes the fact when it was hunted down in 2010 that Whether something is confidential or not depends on the facts on different her husband, as in this case in a moment, leaves his bank state line ground in the home in the kitchen, leaving it lying around. It may lose its confidential character against a wife, but you have to look at the relationship in the way in which to live together. So if the parties had their own studies less likely, the wife would copy the statement without them infringing. The husband's confidence rose in the marital bedroom. On the wife's case would be week of the husband. So Tristan was captain a drawer in his desk, and we could still if it was locked in his desk. But confidentiality in an imminent of course, imminent. Of course, that is not dependent upon knocking keys. So the wife may April might still be able to maintain against her husband a confidentiality of diving or otherwise, even though it was kept physical unlocked. So it's not necessarily whether it's left lying grand, but as you can see, if documents are left lying around, it does make it that it doesn't lose more of its off its confidential nature. Onda here The wife was arguing that the flash drive under password one of your inbox to which he had access freely and therefore, she said, it was very much similar to the lying around situation has referred to in a moment. The husband said it wasn't in the envelope password on it, and she said that he said that the wife access that using a technology specialist. So he said that she was lying about how she accessed it. And the court did say that to avoid this argument, the wife would deal with a flash drive in its contents as we thought they were. A moment documents in the quarters, with the guidance set out in this case of you delegates BK, which basically is if if what is person, as in this case, the wife does supply documents to this listed on this list of must read them, but must immediately seek to obtain all of them from the wife and return them both copies and also any soft copies and we photocopied versions to the husband's listers if he has one on this list of the knows that due to the court in that the husband's lawyers in that case, we don't read the documents and disclose them if they are admissible and relevant in relation to ensuring that the husband is complying, which is due to your full and frank disclosure. So the court said that they would deal with the matter on that basis. But as it happened, the husband's legal team did not, in fact, disclose the contents off the flash drive. The husband's lawyers don't disclose on the basis. UH, that, UM, they said that lifting the documents in this way was inappropriate and therefore they would not be disclosing. Wife therefore made an application for specific disclosure off these documents. On that, the court did say that wife claimed that she had handed these backed up to her lawyers who in turn and provide them to the husband's lawyers. And in her statement of support, she was able to detail quite specifically all 18 separate documents on the court. Didn't suggest that she had been cheating on had kept notes. But of course it was interesting how she managed to remember all of these despite the order for disclosure the husband had not produced ease on, uh, we'll find a situation was such that they were there on a memory stick which were now in the possession of her husband's listers, was as well as on a copy under wife's lawyers, but still hadn't been produced or to the court. Indoor circumstances. And the husband was maintained that the wife had obtained these unlawfully, so the husband had not produced ease. And this is where the court was concerned that the husband had them applied under Rule 21.3 of the FPR, which gives the third party the option to make it claimed withhold inspection. But what the court did say is that the proper procedure the husband should have applied in these under Rule 4.1, subsection six and sections 31 F off the much wanted Family Proceedings Act for Northern Varying Go, revoking the order for disclosure that was made against emerged in life. Salk sort against him on gun. The facts he had a court did in fact, authorized disclosure of the documents held by the wise German lawyers. These would then give the husband ensures that he faced no risk of disclosure about company that these documents related to because he wasn't making a disclosure In fact, the court was on down in relation to you on the application of Rule 4.16 To proceed on that one has to show that their husband material changes. Circumstances says the order was made on that regard. So here the court said that the husband had not acted promptly. He had not demonstrated that was a material changes circumstances, and there's no good reason what her husband did not make. This is evidence of Al about your wife. In the circumstances, Saudi court was correct and having had made the original order for disclosure on the facts. Okay, so that brings decision to an end so well done for coming to the end of this session. You can see have covered a fair bit with you today, looking at the position, financial remedy cases. So what I'm going to be doing is continuing with some of the other aspects on financial remedy matters in the next session on also, we're looking at some of the law insofar as divorce is concerned, particularly with 30 a proposed reforms to the Lord to force cannot thank you very much for the sting hope that's been used for for you and I speak to you soon. Thank you. Bye. For now
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