Hello and welcome everybody, very pleased to welcome you to today's session through Data law. Welcome. So my name's after Mahmoud and this then is the session, second session where I'm going to be taking you through family and matrimonial law update as of autumn 2022. So this is session two now as you know that in the previous session uh I spent some time in going through with you uh some key updates in so far as the position surrounding divorce and dissolution. We looked at some of the changes, some of the updates and really to see what has bedded in insofar as the new law is concerned. And in terms of financial aspects in the last session, you'll remember. I also spent some time particularly looking through the efficiency document which became available earlier this year in the 11th and 12th of january this year. So I took you through that today then what I'm going to be doing is going to be developing some of the themes in so far as the position with financial remedy matters in particular. So we'll be going through somebody developing and updated case law on this to give you an insight into somebody updates we've had and tied in with that. We'll also be looking at somebody aspects surrounding cohabitation, also to be able to bring you to participate with somebody recent case law developments we've had. So as to help you with some of these aspects, so that's the and then as I mentioned in the previous session, the aim is going to be that once we've gone through uh some of these aspects that in the 1st, 3rd session, I'll be going through some aspects with you in relation to personal protection applications uh and also the position with Children, particularly private Children or matters insofar as that's concerned. So we'll have a look at that also to see how we get on. Okay. So let me then start with looking at some of the aspects in terms of some of the case law on finances. And we're looking at this as of October 2022. So this case that I want to speak to you about this is the case which looks at the issues surrounding postnuptial agreements and the notice to show cause uh So this is the case of sc against TC acting by Gordon litigation friends. So this was a case, had it done earlier this year by the Central Family Court by his honor Judge Hess. And this was as of the 20th of May this year this case And it's a really, really interesting one because it really looks at not just the issue about the position with having a litigation friend when the person does not have capacity but also what's the position and with post nuptial agreements where uh on the face of it, the post nuptial agreement may on the face of it be satisfying all the elements of the red marker and the granito granite chino um requirements as many of you would know of the Supreme Court decision of 2010 but can the post nup agreement in those circumstances be upheld or not. So really it looks at those types of aspects so it related to financial remedies proceedings application concerning wife and husband is a 20 year 26 year marriage. It did go all the way to final hearing you. Another wife has relied heavily upon the post nuptial agreement which had been drawn up and her husband was resisting that both parties were legally represented. And this is one whereby Uh the husband was somebody who had worked very successfully in kind of investment banking and particularly made a lot of money through that process. Wife was in university education had studied that undergraduate degree and had been a homemaker for a fair bit of time. So it's a 26 year marriage the other child who was 17 approaching 18. And it's very very sad case. It's one where the husband had been diagnosed some years previously with Parkinson's disease and he about seven or so years previously to this matter coming before the court, he had decided to visit a sex worker and after he did so he felt very guilty and ashamed and very much regretted what he did and he told his wife told his wife about what what he had done and on the face of it understandably his his wife was not really in a position she felt to forgive him for what he did. Obviously something like this is not a very, very difficult for both of them. But this is where wife really said to him, look, I can't really feel that I can forgive you for this. And then her reaction was at first that she perhaps wanted to divorce. But this is where her husband begged her and said look please don't end the marriage, do whatever it takes. And this is where the wife did in fact go and see a lawyer and she was persuaded to continue the marriage. But to really bolster her financial security, she said look fine, I won't go for divorce but I do want to post nuptial agreement drawn up so that if we do divorce in the future at least I know what you'll get and what I'll get. So she went to see lawyers day drew a proposed nuptial agreement. It was then provided her husband, he remember had lawyers as well as wife. And even though his lawyers said to him for negotiation, that look actually the agreement, he's not one which he's going to assist him. It's one whereby effectively if there were two separate, she would end up getting approximately about 80% of the the assets and be left with only the 20%. So it wasn't one that really work towards the idea of fairness in that regard, in terms of uh equal division of family assets, but as you know, that's the whole basis of agreements if one person wants to, for example, ring fence, premarital acquired assets or otherwise. And as you know, that's where an option agreement can then work in that relation in that context, to be able to then go against the the notion of 5050. But nonetheless, the husband was certainly encouraged by his lawyers not to sign the agreement, but he felt very low at the time, he'd been diagnosed with Parkinson's, he wrote several notes and he felt that really had very little option. So he did sign the agreement. And that's where some six years later after the agreement was signed, the marriage did break down uh and the parties separated. So like I said, this is where the wife was relying very heavily then upon the uh the post nuptial agreement obviously that they entered into after the marriage. And some years into marriage was the husband was arguing for an equal division of the assets. Was wife like they was arguing for a substantial departure from equality very much in her favor. And uh and that was on the basis of this post nuptial agreement that entered into. So what was the position and with disagreement because as you know, any agreement that's put together, the court is then going to have to compare that against the principles set out in microgravity know, as you know, that's the 2010 Supreme Court decision and many of you will be familiar with the principles set out in one of the key things that the Supreme Court said in there was that the court can give weight and even decisive weight to print up and post nuptial agreements, as long as there is uh the process of fairness in the sense that there was a proper disclosure, there was sufficient opportunity to provide details of assets and liabilities. So they both knew each other's financial position, that the person understood. Each of them understood the implications of what they were signing up to. There was sufficient bargaining between them wanted to exploit their dominant position of the other. You can look at the age, you gotta look at the maturity, you got to look at the health. So as long as all those factors are looked at and there was no undue pressure born upon one of them by the other indoor circumstances. And the court can give weight and even decisive weight to these. So as you know, the court fell short of saying that these are binding. And as you know, it's not something that perhaps the judiciary can say is one obviously for parliament to then adjudicate on which to date they're not. So with all that in mind, what was the position on this one? Well, the court did say in paragraph 25, his his honor did say that the post post nup agreement did have the hallmarks of the essential requirements as it appeared in in the red Mac decision and therefore on the face of it appeared that in fact it should be should have that level of weight. There was proper disclosure between them. For example, both parties had legal advice, in fact, top quality contemporaneous legal advice. So it was so neither of them were short of that. That happened. The agreements drafted very professional. It was very clear from the outset. So so you can see all the hallmarks was there both parties were when it was signed of mature years and high intelligence and ability and then you to an extent what they were doing. So again, it had very much all the hallmarks as he's always said. But these were the problems of his did say that actually the difficulties were these the wife did in fact the course that fell foul of the latino in terms of the fairness test because here, if you looked at what they had agreed what she would then get and looking at her standard of living and he's doing a marriage would leave him in a real predicament of real need. So that she likes, I would end up with approximately 80% of the total assets and he would be left with a lot less. And here this was a man who had Parkinson's disease. His condition got worse. Six years later, it was more cute. Obviously his needs given his illness were then greater. So therefore he would be very reliant on the state. He would be very reliant on, for example, moving into a care home and this is something he didn't want. He wanted to be able to stand on his own two ft and be able to deal with was required and expected of him. So his his honor did say a paragraph 33 30 for that. It would be wrong to place weight on a premarital agreement on the post nuptial agreement in this. Not only was it very much to the husband's disadvantage in financial terms, but the court reached the conclusion at the time he was signed, he was of course a vulnerable person. And the wife took advantage of that vulnerability to her substantial advantage because remember he was very low, he was he was the virgin had been depressed. He had been diagnosed with Parkinson's and he didn't really see any future. And also in relation to the fact that he had visited the sex work, he felt very guilty. Of course. That really added to the fact that he was very vulnerable in that regard. And the wife took advantage of that. Uh And even if the court was prepared to uphold in the court did say that even if we did uphold it would leave the husband in a real need, a predicament of real need, possibly leaving him with inadequate accommodation. Running the lewis that he would have no option other than to do the one thing you want to avoid, which is to go into a care home and the court therefore dictated that it would be inappropriate to hold him to the terms of this agreement. So with that in mind the court decided not to. And instead they looked at the sharing principle and looked at what was reasonable in the circumstances here and therefore they looked at his needs and looked at obviously his medical position and the wife's needs. And therefore the court did in fact instead make an award which was more commensurate with their particular needs in the circumstances. So you can see it's a really interesting case now the fact is because uh the husband later on uh during these proceedings uh he was uh did not have capacity and of course that's where he then needed a litigation friend on his behalf to then be able to deal with the matter on his behalf. And that's where he had a litigation friend. Uh as you know, you wouldn't go down the route of the official solicitor unless there was somebody else who was able or willing to be his litigation friend. And that's where there was the other person there, The lawyer as it happened, who was able to be his litigation friend. So, very useful case. This one interesting Now that then brings me on to applications under section 27 of M. c. a. Many of you will know that these applications are not very common at all. But nonetheless it's important to know about them because they could be obviously very relevant. So, this is based on this case of Villiers Villiers one earlier this year. And just to kind of put this into context, many of you will know that when we look at financial remedies, many of you will know that when we think of financial remedies, we think of financial orders in the first instance, which we used to call ancillary relief, as you know. And remember financial orders, you can only pursue those if you're going for a divorce of a marriage or dissolution of the civil partnership. If you're going for judicial separation of a marriage or separation of a civil partnership or personality of a marriage order or reality of a civil partnership board. So, if you're going for any of those, as you know, you can pursue a claim for financial orders, which incorporates maintenance pending suits, periodical payments, lump sum, property adjustment, sale and pension options. So, we've got all of those. But what if they're not married, what if they're not civil partners? What if they don't want to divorce? What if they don't want to dissolve the civil partnership. But yet there are financial aspects there. What do you then do? Well, of course, there's Talatou, isn't there? Which many of us know, Trust of land appointed trustees act, but that's not a form of financial remedy, you know, that's within the cpr as many of you will know. Okay, so therefore, you know, you've got some of those aspects and what would you do here then? So let's say one does wish to apply for a financial order. So your financial remedy, but it's not the form of a financial order. So let me give you this example. So you've got wife, she's saying to you that her husband um has had an affair or his behavior such that she's really not able to may be forgiven for that. But she's not ready for divorce that she may not want to divorce. There may be religious cultural objections to a divorce in those circumstances. So with that in mind uh she may still want to resolve the finances. And that's where an application under section two of the D. P. M. C. A. Comes in that some of you will know about the domestic pursuits and Magistrates courts at 1978. So somebody may apply for financial uh relief through that process on the basis that they have not been provided maintenance from the other person or for the benefit of the child. But sometimes because there's an upper limit of £1000 for any lump sum on the to the D. P. M. C. A. Sometimes people may feel that that's just not sufficient. So that's where they may apply uh in those other circumstances whereby they may apply under uh section 27 of em C. A. For basically uh the periodical payments or a lump sum. And that's where this case of Villiers comes in. So here, what happened is Lord Justice must in uh handed down a moral and so the Lord Justice Moylan hand, leading judgment following on from the appeal for from Mr Justice Mostyn. And this really looked at the appeal by the wife from the Order of Mr Justice Mostyn, who had dismissed her application under section 27 of M. C. A. Uh And this is where the wife who therefore wasn't at this stage uh in in the process of therefore having to divorce, was seeking disorder on the basis that she was that her husband had failed to provide reasonable maintenance for her or had provide provide failed to provide a major contribution towards reasonable maintenance for each other family. So, that's the grant she was using as I've just mentioned, And this is where his lordship did say that a gateway is required because an application under section 27 is not connected to were made within other proceedings. It's a freestanding applications, as we said, you don't have to lodge a divorce, you have to lodge a dissolution of civil partnership or judicial separation for this. It's a freestanding application and therefore, it's determined by simply looking at development facts at the date of the hearing. And the issue here was the wife likes they appealed and she challenged this decision by Mr Justice Mostyn, she had made her applications some five years previously, uh and the court like, say, did explain that Section 27 applications are literally used, but they are alternative ways of financial remedy, where you may not be then seeking a financial order, like I say, when it may not be divorcing otherwise. So, the wife like, say, did appeal and there were a number of key arguments that she ran here. And one of the things which she was successful in that paragraph 10 of the judgment is his lordship did say that the court would reach the conclusion that Mr Justice Mostyn had uh was wrong in dismissing the wise application for the orders actually sought in the section 27. And that's because the judge was wrong to determine the issue of whether the husband has failed to provide reasonable maintenance by reference solely to the period prior to the date of the application, rather than up to date of the hearing. And his Lordship's view, that's what section 27 provides. So, you need to look at this as at the date of the hearing in that regard, so used to refer to it at that state. So, if a financial position is such, that there is a need for the provision and the other person is going to make a reasonable provision, and her application could be successful there. And secondly, as for the duration of the order, his lordship did say that the judge's conclusions as to continuing influence and effect of her husband's due to maintain were wrong. The order should be until further order or otherwise earlier remarriage. Okay, so that's really the basis upon which the order could actually continue. So it's worth looking at this case just to almost look at the factors and the point at which the court look at the factors in deciding whether to make the section 27 A. M. C. A order or not. The court also rejected Mr Justice most teens point regarding the common law doctrine to maintain. So that would be irrelevant to the exercise of the statutory powers here. Because obviously this was written in statute And his lordship also said that any continuing connections that may have been between section 27 and instituted to maintain came to an end once we had the changes brought about by the domestic procedures and Magistrates courts at 1978. Okay, so therefore the commodore duty would not time in the same way here. Right, that then brings me onto this other case earlier this year that I wanted to pick up on. And this is really looking at the position with distribution of financial assets following a short childless marriage and where one may argue premarital cohabitation and possibly also an engagement. So where do we stand with this? So this is the case of V V and VV earlier this year, 13th of May 2022 judgment handed down by mr justice peel. And again, as you can imagine, just to put this into context, there's not been that many cases where people have looked at their position with distribution of assets, where there has been then a short childless marriage, the one I'm thinking of is there was a case a few years ago, some of you remember the case of miller miller miller back in 2600 by the House of Lords as it was then, that was a short marriage two years and nine months. And it's one whereby My wife had been earning around £85,000 a year, husband was earning about a million pounds a year. He got married, he encouraged his wife to give at work, he would look after her and they wanted to have Children. But sadly she had a miscarriage a few times and then later her husband committed adultery and and the wife divorced him. Money is adultery and the wife was able to argue successfully the concept of economic disadvantage because she had led her life based on really what her husband wants her to do. She had given up that job at his request and therefore he had caused that he suffered a significant disadvantage of not being able to resume into that career path actually had given up in that regard. And and therefore he had to dis economically advantage of basically had caused economic disadvantage given that she had a career path which he had given up for for his benefit. So even though it was a short marriage, he still managed to get a successful and significant periodical payments order. So, in this case of V. V. And V. V. In this case earlier this year, uh This was a short marriage, in fact very short, it was only some five months and they had no Children. And then obviously after 12 months they can petition for divorce. They're both in their fifties and issued a court had hair. The principal issues in this case were the extent of premarital cohabitation. So where does that stand in so far as premarital cohabitation? Uh so does that then make the marriage longer, for example, which then enables one to make it into a longer marriage. And therefore the concept of dividing the assets on the basis of a starting point of 5050 unless there is reason to depart from that. So can we do that. And does the extent to which sharing principle apply, doesn't apply to her husband's assets here. And also, the court did say that there were issues on this case as to whether her husband and indeed the wife were guilty of misconduct the husband and having had sold part of his entitlement to certain units in the company. Uh And he having concealed this sale From the wife and the court and also the wife whether she was guilty of misconduct and having prevented the release to the husband of his units in the company at the opening of the official market. So you can see a number of key issues were being raised here. Well, I mean, certainly in relation to the issue of cohabitation, many of you know that the law for that has been set out quite significantly. A number of cases at paragraph 41 42. His lordship specifically said that when it comes to cohabitation, you've got cases such as G. W. And R. W. Which was handed down by Deputy High Court Judge uh Nicholas Mostyn QC at the time, were here if a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way in which they live. That is unreal and perhaps artificial to treat the periods differently. So essentially you can add that period on. So many of us have been arguing that case, haven't we? As many of you will know. So the fact that say they were they were cohabiting for say 10 years and then they got married and have only been married for say three years and the marriage comes to an end. As long as uh they've been moved seamlessly moved from capitation marriage without any major alteration the way they live in their life, then actually can regard that as a 13 year marriage effectively. So many everyone notices where the case of parliament parlor comes in. You remember in 2002 where there were a part of the footballer, He and his wife cohabited for about 10 years, they were only married for some two or three and therefore the court regarded that very much as a longer married sort speaker because of the period of cohabitation. So the purpose is of course, to ensure that by doing this there's no discrimination between the homemaker and the earner. Do not peel decapitation, just as there's no room for discrimination between spousal roles during the marriage. So if they were cohabiting for say 10 years and say one of them bringing the money and the other one's looking after Children and you mustn't discriminate them just because they didn't have that commitment to marriage in that regard. So if the if the way they live their life just seamlessly moves from capitation and marriage without any more major alteration you can regard this as basically a longer marriage. Okay. And this is then to avoid a lighting upon any artificially short period of marriage. So, as many of you will know, there was of course the McCartney case, uh Paul, McCartney and Heather Mills for example, where is the Justice Bennett once again in that case, said that when it comes to cohabitation, if it seemingly moves into marriage and beyond normally involves them that kind of commitment between them in that regard. Uh then this is where it could then lead to therefore be regarded as a longer marriage for that purpose and therefore one incompetent division. It's easier argument than to be able to say that the assets, marital assets should then be divided equally. But of course, the court did say that one has to look at how they were cohabiting and what kind of work they actually cohabiting Gle or was it less than that? So, his lordship did say that one has to look at their respective intentions when you're inquiring into cohabitation. Okay. Uh so we're one of them. One of both of them didn't think they win this effectively quasi marital arrangement or they were equivocal about it and that might weaken the cohabitation case. Okay. Whereas if either or both believe that the witness almost quasi marital arrangement and that will strengthen the cohabitation case. So, you've got to look at how they were living their lives and whether they honestly believe that they were cohabiting in that regard. And many of you all know therefore that when it comes to cohabitation, you're looking at whether they were living together. Most say that week was their intimacy and with the kind of pooling of resources together. And those are the key things you're looking at to see whether or not they were then there would be classed as been cohabiting in that regard. The other point that this case highlighted them was that which relates to engagement. What if whatever couple have become engaged to each other. And this is where A paragraph 47 48 of his judgment. His lordship did refer to the Miller case I mentioned McFarlane in 2006. And what you're looking at is any marital property was acquired during the marriage. And it may that include periods of premarital capitation and even engagement. Okay, but what do we mean by engagement? So this may suggest that everything required after engagement consists of marital property, regardless of whether they were cohabiting or not, but it depends on the circumstances, the court said. So it's unlikely that if there has been a lengthy period of engagement, but they weren't really cohabiting, it would be wrong to justify an entitlement to assets accrued pre marriage in that situation. So, you know, if they were engaged for, say five years, but they didn't actually live together, it's it's wrong, isn't it? Arguably to say, well, look, whatever assets that person acquired pre marriage should then be divided equally as well. On the basis that it was the joint efforts, because arguably may not, well, it may not be that. So, it's hard to see how engagement without mutual commitment and shared lives akin to a marital relations would come close to justifying an equal share of assets which were built up then between a data engagement and the date of the marriage. Okay, so, you need to look at that to see just because they were engaged where they actually live in their life together as well in that regard. That's what's important. So, therefore applying that on the facts, His lordship did say that on the facts, sir, program 60 to 65. His Lordship said that on the facts, the husband had in fact paid for the holidays when they were engaged in cohabiting. So he had been paying for the holidays, meals out, brought, brought gifts. Uh He brought gifts for his wife to be engagement ring. And obviously, you know, these are acts of a man who's shown generosity towards his girlfriend and not necessarily indicative of cohabiting. And here, even though it has been argued that they had been cohabiting for longer than what was suggested. In fact, the court took a different view. It wasn't until December 2019 when the husband left the states the usa for good. And the party's moved into this rented accommodation, rented home in London after that. Until then, yes, they had been in a committed relationship. They spent time together. There were affectionate, supportive, shared dreams and ideas, but it fell short of cohabitation. Therefore, whatever assets would have been acquired during that time, they wouldn't necessarily then be subjected. Division would be regarded as premarital assets or non marital assets. And also the fact that there was this factor engagement or that's relevant when you consider the extent of your commitment, shared that in itself doesn't give rise to a sharing. So you've got to look at the fact they were engaged where they're still cohabiting during that time. And were they still sharing their lives. So it's the fact you're engaged doesn't automatically say that any assets acquired during that time and they're going to be subject to division. Now, the other point about this case and that the court looked at like says, the issue surrounding conduct, and this is where, as I mentioned, the husband had sold part of his entitlement to units in the company uh prior to release, Danny had failed to disclose this to wife court and he had failed to disclose these matters to y for court as litigation misconduct, which As you know, when it comes to those aspects, if, for example, somebody's dissipating assets and as you know, that could come into play in so far as conduct for the personal section 25 to G, but if somebody's failing to disclose assets despite orders, obviously for disclosure, you've got your formal requirements questionnaires and specific orders for disclosure. If a person is failing to do so, then that's where they could then be fail of litigation misconduct. And that, as you know, could then lead to cost orders. So, you got 28.3, sub paragraph seven of the FP, which allows the court to make costs orders in financial remedy cases on the basis of litigation misconduct, for example. So, we know that in that regard. Okay, So when it comes to situations related to costs, there's personal misconduct, you know, actually married. So that's where you've got cases where somebody has to their conduct caused the other harm, For example, you've got instance of violence. Uh, there's been cases where the party is sexually abused one of the Children, for example, of grandchildren. That's personal conduct, as you can see, that's Pursuant to section 25 G weight would be inaccessible to disregard. So that's that. But then there's also sometimes people dissipate assets when they dissipate assets during the marriage or otherwise. Then that's where you can add back at you and you can argue that they wasted assets or dealt with it that way. And then the third bit, of course, is litigation misconduct, which is with the way in which people are running uh, the proceedings and also lack of disclosure as well. So it's that as well, which can lead to litigation misconduct. And this is where, as you know, sometimes we can have these arguments that are run. So here you're looking at her husband's alleged conduct and he also looking at the wife's alleged conduct or so so here on the facts. The wife was said behaving, communicating behind her husband's back and of course, said that's gross and obvious conduct, which the cause take would be entitled to take into account. And when you looked at the relationship, he had impression of the standard of living was that it was close to wise description as being very luxurious traveling, first class business class expensive kind of eating out and so forth. All of those factors obviously were relevant in terms of looking at the standard of living and in terms of meeting needs. So what the court said here was ultimately that they would take into account of conduct elements. They wouldn't take into account the assets pre marriage because they although only to a certain level because Despite what was being argued, they hadn't, the courts have been regarded as cohabiting until December 2019. So assets that would regard as being non married and therefore not subject to division. And the court here uh did order that the husband in terms of meeting needs would be ordered to pay the wife as some of the £150,000 here, which was around amount in that. Uh And this was looking at the criteria, a a fair amount. So given this was a short only five months childless marriage, debt free wifi don't have total assets about 1.2 million because some of that was a premarital owned assets nonmarital, and then the maintenance. Okay. And the rest would then be kept by the husband in terms of non married or so that's the way the court dealt with that. But then you can imagine that with some of these cases, people would then obviously, sometimes they always continue to raise issues over over conduct. Now, another case then that I wanted to discuss with you is applications for mps and maintenance pending suit. So just to kind of put this into context. Uh This is where by uh the type of situation I'm thinking of is where uh let's say you're for wife, she's lodged an application for financial remedy and as you know, the main financial orders won't come in until the end of the latter part of divorce. Hence when one is applying for uh the consent order to be endorsed by the court, you're looking to check to make sure that conditional order has been pronounced because they won't come in until that stage or even after that in some cases, depending on which Children is. So whether it's periodical payments, lump sum property adjustment, pension orders, but there is one order, as you know, which one can then apply for before uh the obtaining of the conditional order or decree Nisei. And that that's nps maintenance pending suit. Okay, So for example, your for wife and she's largely divorce and she needs an amount of money, say from husband to maintain her standard living to maine to meet the necessary household expenses. For example, going forward, then that's where she may well then instruct you when you do lodge your financial remedy applications. She may well then instruct you in those circumstances to to pursue the order for mps. So that's where that comes in. Now, one of the things to be reminded with that as you can see with this case of colorado fuse and fuse earlier this year and done by MR Justice Mostyn, is that when you are going for one of these orders, then we need to be clear about when does the court determine the standard of living for the personal calculation, is it is it when uh the relationship was beginning to go sour? Or is it at the date of the hearing? When you know when when do you actually figure this out for the purpose of the standard of living? Well, So this was a case for mps but the wives and in spending suit, it's a nine year marriage Nice. I was pronounced hadn't yet been made absolute wife continued to live in the home in London. And this is where there had been a prenuptial agreements on imposing ups as well. So here before the marriage, they entered into a prenuptial agreement in new york. They made disclosure. Uh And at that time the husband's net worth was in the region of 1.64 billion. Wife was said to be about 4.471 million. Obviously huge amounts of money here both took advice from lawyers represented no suggestion was made of any deficiency or pressure leading up to the prenuptial agreement. Then, once they got married then then later than they entered into a modification agreement, basically the form of a post nup agreement. So this was about two years later. Except this did increase the financial provision that the wife would then get pursuant to the prenuptial agreements or there would be a greater amount given to her. And again, there was no suggestion of any uh huh, any suggestion of any undue influence or pressure, undue pressure in the green this amount. So what were the issues were basically his lordship said that the husband sought to hold on much in terms of these two agreements. So his argument is, we've agreed these terms and therefore the wife should be held to these. And therefore these would then provide the wife of the capital of 23.5 million and rent for accommodation at their property. This would clearly meet her needs and therefore she wouldn't be left in a situation of real needs. So that was his argument that the wife should very much be held by these. Uh And he also said that he will continue to provide interim financial support pending resolution of these anyway. So you can see there were certainly a number of generous uh positions that he was putting forward there where the wife said that actually uh she the court should not uh abide by these. And in fact, the wife was arguing that following the separation about two years prior to this hearing, the wife claimed that her husband and almost immediately reduced the provision was making for her. And so this was when they separated about two years prior to the hearing. And her husband said, well, yes, because she had been spending at a very prolific rate and I needed to impose us in his word some financial discipline. So so yes he did reduce what she was entitled to spend in that regard. So basically the husband was very much relying upon the prenup and the post nup agreement for that to stand. And he lodged his application financial remedies on four May and also an application for wife to show cause why an order should not be made in the terms of these agreements and therefore an order also for automatic timetable in exchange for me and other directions should all be suspended because he was famous relying upon this on this effectively his prenup and pulsing up agreement. So the court gave directions and did suspend the financial remedies application pending determination notice to show cause application and for them to then fall short schedule of assets in that regard. So that was done but later. So whilst that was being done later the wife in fact once the husband and lodges to form a and then a few months thereafter wife decided to lodge your application mps maintenance pending. So remember that divorced and has been progressed And in the application she was asking for some of £350,000 per month which she said would be an amount which was required to meet not just her needs but that of the Children on the basis that she was taking over responsibility of paying for overheads and the house she was living in London in terms of staff salaries. And therefore she filed a very detailed statement in support of the the M. P. S at the time. So what did the court decide what amount if she was going to be obtaining this? What amount which should be getting? Well, this is where the court then looked at the law surrounding Mps application. The court referred to a number of cases. There's a case of Tl and Ml and others. The 2006 case where at paragraph 1 to 4, the court has said that the sole criteria, basically, when you're looking at Mps application is is what's reasonable. Okay. And a very important factor is the material standard of living. Okay. To see what's reasonable now. So what is that standard of living? When do you work it out? Is it when the relationship ended? About two years previously? Or is it now when it was being heard? And when the form a was lodged and wife lodged? The M. P. S. So do you look at her financial position Now, What do you look at it when the marriage really, when when the relationship ended and they separated? We'll hear the court said that the marriage was heading for the rocks at the end of 2019. When the husband began complaining about the wife's expenditure and separated in March 2020. So a year later. And of course, satisfied that when you are looking at material standard of living, you need to look at uh the figures at the point at which really the marriage was heading for the rocks. So the figures were such that what the wife, the standard of living was was greater in 2020. And when he was in 2019, Uh sort of court would actually therefore based on what was reasonable. They would look at what her standard of living was at the point at which the relationship was was really coming to an end. i.e. was heading for the rocks, so to speak. So that would be the figure as of 2019, not as section not 2020. So therefore based on her needs at that stage. And what was reasonable at that stage, she would get maintenance pending suits include maintenance for the Children. But as some would be less than What she was seeking, a lot less. And here it was 71,300 per month as opposed to what she was seeking, which is an amount similar to £250,000 per month. So, again, a very useful case to look at how the court would equate what's reasonable staying with that. There's also this case of baker and baker worth looking at. If you get a chance, this was february this year. Also by Mr Justice most in uh and again, this was an application by wife for mps. And what this case is looking at them is also like, say, the position with applications for maintenance pending suits and the court referred to the court of appeal decision in raton. And the 2021 decision which endorsed the previous case of TL and others so that the court did say that the sole criteria when you're looking at an application for mps is one of reasonableness. Okay. And the purpose of maintenance pending suits to meet your immediate or current needs. And that in assessing needs needs an important factories, the material standard of living. So the court basically does a broad brush approach. They don't go into very strict numerical exact amounts. It's more of a broad brush approach to see what's acceptable in those circumstances. Okay. And with that in mind here, therefore, both of them obviously therefore need to providing financial statements of course, that the court can look at his needs and his financial position, her needs and here of course that that disclosure made by her husband and his for me was was deficient on the fact there was a lot of things he hadn't disclosed in the circumstances. Uh there were lots of questions to answer and it was bizarre that the court said there was a lot of contradictory evidence which was made available. So the court was concerned that his questionnaire and he says for me was not as a full under complete as what it should have been. And the husband was trying to argue that his financial positions were a lot more strained. He couldn't afford to pay the mps. But the court completely rejected that they felt on the facts, he could afford to pay the amount without any difficulty at all. He could very easily afford to pay 100 and £70,000 in installments. And in fact, he had another six million attitude his well, so he could clearly pay this. And the question was whether the why should get this amount that she was seeking as opposed to whether the husband can afford it. And this is where the wife said that there was a previous separation agreement that I had in 2015. And that should she said, we take into account to bolster her Mps application And she said, Look, we have disagreement in 2015, husband didn't comply with that. He didn't pay me that amount. So she said that that should have been taken to count. So basically a prenup agreement she was relying upon. But the court didn't accept that. They said, we're actually going to look at your needs as as they are at the point at which we need that marriage was coming to an end. So it would be wrong for the court to afford any kind of recognition to the separation agreement. The wife had chosen not to enforce for six years. It would be wrong for any kind of prejudgment recognition of that agreement here and it would still be dealt with under the kind of conventional way. So at the point at which they were, the relationship was very much coming to an end. What were the needs at that stage And that's what they would take into account applying that very much that broad brush approach to see what she would get. So the court in fact awarded an amount of $6,500 per month as opposed to what the husband was suggesting in the circumstances and the court was not prepared toward any backdating to that. Okay. And that will be paid by way of installments. Okay. It's worthwhile looking at that case now in the last session and I did speak to you about the position with the efficiency document which was as you know, put together then by Mr Justice Mawson and his other Judge Hess earlier this year in january. And this recent case of W. C. And hate see financial remedies agreements with everyone. Just emphasizes how important it is to make sure that there is compliance with With those particular expectations in there. And this was a case whereby a paragraph one in particular his um lordship did say that relationship preparation for trial. There was some major failings here. So what the PTR pre trial review. Both her husband and wives, section 25 statements have been filed but there were to be limited to a 20 page narrative. Okay. And also that they should be typed in a fund. No smaller than 12 point with 1.5 double spacing. Well, the husband dealt with that, so no problems on the east side, but wife didn't. In fact she did file her statement, but she used a much smaller font size and spacing. So in fact what the judge did is going to convert it back to The 12 Fund and 1.5 spacing. And in fact that meant that actually her pages, 27 pages as opposed to the 20 page limit. So therefore working it out, his lordship said that her statement was therefore 33% longer than that other husbands and this was completely unacceptable, the court said. And what was worse is the legal team. Wife was legally represented. The legal team were criticized because they should not have allowed wife to submit this in this format. So obviously can see criticism being leveled. They're very, very important to ensure there is compliance in that regard. Right? That then brings me on to the last part of today where I wanted to spend some time and just running through some key updates for you into. So far as gravitation is concerned. And this is where many of you will be friendly with estoppel claims. Sometimes we'll have claims that people bring in for prepared to stop or where they may well argue that uh it's a situation where essentially more times than I tend to be adult Children who sometimes applied against their their parents are deceased parent To say that the parent had promised them that did get a significant proportion of the land that they were living on and working on maybe and then later the fallout or all the other siblings, for example, may be seeking a larger share. And then this is where they made Bobby and stop acclaim. And a recent decision on that was this case of Williams and Williams and others. This 2022 decision and there was reliance than on the previous decision of Davis and Davis, which very much looked at the criteria for West op or e having to show reassurances, having to show detriment, having to show that it was not unconscionable to rely upon this and having to really look at fairness in that regard. And there was a case of guillotine hold a few years ago, she was a successful historical claim in that case. So just looking at the facts of this one, essentially, this was one where the claimant was one of the adult Children of the disease. Father and and his wife and the defendants were three of the other siblings and the executors of the late husband and the wife. So this is where the claimants, mother and father who were uh with the owners of the land that they both have passed away. His mom had died first and his father and he basically brought an action in relation to the land. Uh and the defendants where he's three other siblings and also the executives of his mother and father. And there were two claims that he lodged firstly. He argued that the land was such that the assets were that the partnership which carried in the farming business between him himself and his parents and as a result of their death, he argued that that now fisted in him. Secondly, he said that the land on the base of those promises was such that his parents said to him at the time that the farms were purchased and subsequently he said that they would belong to him. So he basically said when his parents passed away, they would go to him. These were denied. Both of these arguments were denied by his siblings. Now, one thing is for sure, the court was satisfied that all the family had in fact worked very hard on this farming business. So there's no kind of doubt about that at all. And both all of them had worked very hard. And the claimant said that many years previously, his father had said when he was purchasing the land, he said, look, this is going to be put into partnership and you would inherit this one day, this would be yours. But on the facts, when the court looked at this and made inquiries and looked at what the other siblings were saying and other witnesses, The court didn't was not satisfied that the father had said this to say that this was such an assurance that his son should relied upon. Come what may and of course that he couldn't have relied upon this through all these years because in fact later on it was found that in fact his dad has said that she would in fact be left to the claimant's brother. So there was insufficient here to suggest that in fact he was going to be benefiting entirely in that way. And secondly, the court said that he hadn't suffered a detriment. The farms had been Dad and provided with a living for over 40 years, have been provided with board and lodging had been left with his interest in land and he shared a partnership. So in fact he had been given something, but not enough to suggest that he should be getting more than his brother in the circumstances. So on that basis, the estoppel claim that he had pursued failed. So, again, it's a, it's a really interesting case which really pulls together than some of the factors that the court will take into account and looking at his Estoppel claims. And then I want to also really bring up speed with this other recent decision earlier this year in March this year, which really looks at the question as to whether it's necessary to show both common intention and also detriment To vary the share of jointly-owned property. So that's really the question here and this was set out in this case of Lee Hudson and Jane Pathway. Just 2022 decision by Mr Justice Kerr and many of you will be familiar with the case of stock and doubt and the 2008 case many of you will know and then jones had turned out of 2010 so that you know that in stock and doubt and had the couple, they were unmarried, they moved in together, they own the property jointly. The lady had spent a lot of money from the sale of her first property to point to the second one and throughout the 24 years they were together, she paid a lot more towards his house than her partner did. And they had four Children together later they fell out um she severed a joint tenancy and that's where her partner, her ex partner now said that there was there was a presumption of 50 50. She sought to rebut that, to argue that she put a lot more into the property than he had and that's where she took her case all the way to what was then the House of Lords. And they found in her favor where they were prepared to rebut that presumption of 50 50 and found in her favor, given her contributions and her intention and therefore on that basis they very beneficial interest actually got two thirds of the beneficial proceeds and he got nearly one third. So that's what happened stacking down many of you will know and jones and Colonel case was similar in many regards, many respects the court looked at their intention as as it changed after they had purchased the property. But one of the things which this case highlights is what if there was a common intention between there must do variation. Something was in writing, for example, something was very obvious. Something quite clear. Do you then need a detriment as well or is it enough to simply rely upon that variation based upon this common intention? So that's what really this case looks at. So like say, answer the question of whether detriment or changing position needs to be shown in joint on joint joint family harm cases where there was this common intention between the master division from earlier discussions. So can that earlier common intention in itself be sufficient to order the beneficial interests? Or do you need detriment as well? And this case shows that there's no requirement to show detriment in cases such as this, where they purchased this family home jointly. And when there's no declaration of trust, obviously, if there was a declaration of trust in the absence of fraud or mistake, that's binding as we know, is that case, Goodman and gallant, which makes that clear, alright, we're looking at this. The court can consider common intention which will be deduced from their conduct and their discussions. So if it's clear enough disagreement, then it would be inappropriate to have to add on this additional requirement of detriment if that that is demonstrated in that regard. But the court did say that the evidence that's required for constructive trust may well differ if it was held solely. So this is only if it's jointly owned family homes. So therefore, I would suggest this case takes to stack and down in case further and that it shows therefore that if you've got a couple in the Dubai house as joint tenants, there's a presumption of equality as we know, unless there's a declaration trust later conduct such as detriment can vary that. So we know that and that's famous what happened in stock and data and jones and Colonel, but if they had a common intention and therefore most akin to the position with the declaration of trust and this in itself can vary the division and therefore there's no need to show any detriment thereafter. Alright, so I would suggest it really does take The second down in case further in that regard. So very, very useful case. So, just to kind of give you some of the facts of this case in 1990, you had miss Hathaway Mr Hudson, they then start a relationship Mr Hudson moved into this house ways home and it became a joint owner didn't marry, but they had two Children, let's just hold a house, bought another house and put in joint names and with a mortgage, they bought another house of getting joint names. But again, no declaration of trust. And she stayed at this second property with her two Children. Then in 2011, a few years after separation, the house was really blighted by this oil spill, making it very difficult to sell. Oil had leaked insurance claim really went on for years. And for the next couple of years the party's really started negotiating a lot, having sporadic email discussions about financial arrangements. And basically what they agreed for years later was that this was in writing that Mr Hudson. He said, look, I'm gonna keep my shares and my pension and you know, you keep the house basically. So you're not going to make a claim against my shares and pension and then I'll keep those and you basically keep the entire equity and contents from the home. All right. And then the house will be sold once the oil spill issue, oil spill issue was resolved. But later they they fell out of that and then they didn't agree to. That sort of trial judge found that the parties have clearly reached a deal, parties didn't disagree, but it didn't satisfy the formalities for transferring the legal title. There wasn't a contractor such in that regard. Okay, so 2015, 2 years later, Mr Hudson, he became impatient lack of progress in dealing with insurance claim and basically sought sale. So he then a few years later puts his application under part C. P. And he's basically saying that he wants an order for sale with equal division. And this is where Miss Hathaway said, well hang on a minute, many years ago you and I exchanged email correspondence and you said to me that I would be in touch the whole proceeds on houses and make a claim against your pension or your your other shares. And therefore there was a common tension between the two of you and I and therefore if this house is sold, I should be getting the entire proceeds. That was her argument and she nonetheless still relied upon detriment to reliance. She said, look, I paid all the interest on the joint mortgage on the date afterwards. From january 2015, I didn't make a claim against your other assets. I didn't claim for financial support for the benefit of the Children and the Children Act. I accepted so responsibility for the oil spill, the insurance claim or you know, I spent all the money maintaining decorating the property from Jan 2015 and I relied very heavily on that understanding that I would be to solve beneficial owner in that regard and kept paying the mortgage. So she relied on all of those aspects as a former detriment. And this is where the trial judge did decide on the fact that there was a constructive trust. The judge said that the parties had in fact reached an agreement which was a common attention that Miss Hathaway would retain the entire equity had relied upon this promise relinquished and he claims he may have against Mr Hudson's of the assets and that demonstrated the detrimental reliance. And nonetheless, the judge also said there was a clear agreement on the terms bearing in mind emails that had been sent that she would retain and keep the entire property. All right, and therefore the house would be sold and she would keep the entire equity. But what the appeal was about was was this to establish so beneficial interest, must the defendant have acted to the detriment or change the position? Is the need to show detriment or not in those circumstances? The court did say that there was evidence here, of course, common intention was particularly the email exchange between them, as we know, and there was no issue with the judge's conclusion that the agreement rebutted the presumption in the sense it was evidence of change of common attention. So, that rebutted the presumption of 50 50. Okay, He kept saying in the emails, we've come to a deal emails made it very clear that the deal included Miss Hatheway having 100% of the ownership. So the judge was correct to decided the common intention was there and that therefore rebutted the presumption that the issue was, was there a detriment, was the need for it? Well, the court said there was a detriment. Clearly, there was just like with some of the other cases, johns and Colonel the Supreme Court. But the court said that in a case where there's a clear express agreement has in this one, the question of detriment tends to emerge in that and we got express agreements, which evidence is the necessary common intention, then there's no need to show the detriment in that regard. So where you've got these kind of situations, a domestic consumer context and express agreement has two shares provided it's not unilateral or declaration of trust making, you know, one of the persons banned by it's got to be agreed by them. That could be sufficient to amount to variation of the beneficial proceeds. Okay. But if detriment did need to be shown clearly on the facts, it would have to be, it would have been shown anyway. So the court did say even if detriment was needed, clearly hear the wife has. MS Hathaway had clearly demonstrated a detriment in any event. So she had been able to show that in any event. So very, very good decision. And therefore that's worth looking at and reading in more detail when you get a chance. Okay, so that then brings this second session to an end. So you can see, I've spent a fair bit of time with you today looking at financial aspects, uh some of the leading case law and also some of the aspects surrounding cohabitation and you can see that this is obviously a very significant area going forward. So I develop the family update in the final session where in the next session, I'm going to be spending some time going through with you some of the aspects surrounding domestic abuse. We'll look at some of the developments there, particularly following on from the domestic abuse sector 2021. We'll look at some of the changes that have come in during this year and so far as that's concerned. And we'll also look at principally some aspects of Children are principally private Children law and a couple of important pointers about public Children law as well. So I hope it's been a useful session so far for you and I'll speak to you very soon in the next session. Thank you very much indeed. Bye for now.
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