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Court Returns Two-Year-Old to Land of Birth When Parents' Marriage Collapses

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For a UK court to have jurisdiction over a family law case, it is necessary to show that at least one party to it has habitual residence in the UK. In a recent case, an Israeli woman divorcing her Israeli husband sought a declaration that their two-year-old daughter was habitually resident in the UK so that the UK Family Court could deal with the hearings regarding the child’s welfare.

The Court refused the application and accepted that the child should be removed to Israel in accordance with the father’s wishes. He had previously consented to the child coming to the UK with her mother but then sought an order under the Hague Convention on the Civil Aspects of International Child Abduction 1980 to have her returned to Israel.

The couple had moved from Israel to the UK in an apparent attempt to salvage their marriage as part of a plan for a ‘fresh start’. The mother alleged that the marriage failed because of physical and emotional abuse by her husband, whom she characterised as ‘dangerous and violent’. However, evidence was produced that she had been advised to make false allegations about her husband to mislead the Rabbinical court, and there was a marked lack of evidence for the alleged behaviour or the mother having taken earlier action with regard to it. In addition, the rather short period between the couple’s arrival in the UK and the final breakdown of their marriage was not regarded as ‘a picture of stable integration into family and social life’.

In a long judgment (25 pages), the judge ruled that the child was habitually resident in Israel, not the UK, and should be returned there.

Time of the Essence in Overturning Agreements Made Under Duress

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We have often stressed the importance of obtaining high-quality legal advice in any dispute and starting any necessary legal action as soon as possible, and a recent divorce dispute illustrates why.

It involved a couple who were divorced in 2015. The financial settlement was made by way of a consent order and, as a result, the ex-wife received a cash settlement in excess of £1.7 million and financial support from her ex-husband for herself and their children.

In 2018 she went back to court, claiming that the original settlement had been obtained under duress and by ‘undue influence’, that her ex-husband had committed fraudulent non-disclosure of his true means and that she had not had legal advice on the terms of the agreement. Among specific allegations made were that he had transferred $5 million to his mother and had retained or ‘squirrelled away’ various assets without disclosing them.

She wished the original consent order to be set aside. Before it was made, she had instructed a firm of commercial solicitors that did not have a family law department to act for her. This was, she claimed, done at her ex-husband’s behest. That firm instructed another firm to provide her with family law advice. Her ex-husband had instructed the commercial firm on other matters and his ex-wife alleged that the arrangement had been made so that he could control the advice she was given, which she asserted was scant.

As happens in almost all such cases, there was voluminous and contradictory evidence. However, an important consideration was that the woman was aware of most of the matters about which she was complaining when the original consent order was made. Secondly, when she eventually went to a different firm of solicitors for advice, she failed to take action for nearly a year, a delay which undermined her claim as it lacked the necessary promptness. The judge commented that ‘on the hypothesis that she was constrained from bringing her application for a period because of the husband’s undue influence or duress, the onus was on her to make her application as soon as she could reasonably do so once she became free from that influence or duress. In practice, that means within weeks, not months.’

Her application was rejected.

Court Appearance May Not Mean Public Disclosure

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The principle of open courts is highly valued in the UK legal system. However, it is often a worry to people engaged in legal proceedings concerning family or marital issues that by going to court their family’s private affairs will become public knowledge.

In practice, with the assistance of expert legal guidance, many disputes can be efficiently negotiated without the need for a court battle. However, when the outcome of the dispute is court proceedings, the result may not be as bad as you expect.

Firstly, where children are involved, the courts will prohibit their identification, so that any reports are issued in anonymised fashion. Secondly, where it can be justified, it is possible to ask the court for an order which prohibits the reporting of the case.

Recently, for example, an order was granted to prohibit reporting on an appeal hearing in financial remedy proceedings in a divorce case, due to be heard later this year, in order to prevent the identification of the son of the parties involved. The Court of Appeal was of the opinion that the balance between the public interest and the right to anonymity on human rights grounds tipped heavily in favour of the latter.

Ignore Court Orders At Your Peril

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A wealthy Omani man who failed to pay to his ex-wife the financial settlement ordered by the court, or to cooperate with disclosure orders, faces arrest if he attempts to return to the UK.

When the couple’s marriage broke up, they were divorced under Omani law. However, the wife, a resident of the UK, sought and obtained orders in the UK court for financial relief (under Part III of the Matrimonial and Family Proceedings Act 1984) for herself and their children, who live with her.

The divorce took place in 2017 and the father remained in Oman, having not seen his children for many months at the time of the hearing. He did not comply with any of the court orders made and has not made the maintenance payments ordered.

In making a final financial order for maintenance and a lump sum, the judge also ruled that the husband should be committed to prison for three months for the failure to pay a matrimonial debt he clearly has the means to pay.

Absence of Evidence Dooms Unequal Shares Claim

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The legal ownership of property is not always the same as the beneficial ownership and disputes can arise when no documentation is executed to show the two are different. Such was the case in a recent dispute which occurred after a couple who had two children but never married broke up. The male partner worked in the IT industry and earned the greater part of their income. The female partner was a midwife, who switched to part-time working then gave up work to look after their young children.

The couple had moved to Hampshire from London, buying a property for £740,000 financed largely by the sale of the male partner’s property and a joint mortgage of just under £500,000. The female partner paid £39,000 to assist in the purchase, which was registered in joint names.

When the couple broke up, the ownership of the property was disputed. At the heart of the dispute was whether they intended to purchase it as joint tenants, as the female partner contended, or as tenants in common, as the male partner asserted. If they had purchased it as joint tenants, the value would be split between them equally. If they had purchased it as tenants in common, it would be owned in unequal shares corresponding to their respective contributions to its purchase.

Among the evidence given was that the male partner said in a conversation in a pub, "We are now 50:50 owners but that means you owe half the debt as well." The ownership of the property was recorded at the Land Registry as being a joint tenancy, this being consistent with the advice of the solicitor who acted on the purchase that in the event of either partner’s death, the title in the property would pass to the survivor.

At the original hearing, the judge ruled that the value of the property should be split equally. The male partner applied for permission to appeal, arguing that whilst he would have been content for title to pass if he died, while he was alive he would not have accepted a 50:50 split on a sale as he had provided more of the capital for the property’s purchase. He also contended that the evidence presented at the first hearing could not displace the assumption that the ownership would be in the ratio of the respective partners’ contributions.

In refusing the right to appeal, the High Court placed emphasis on the fact that the male partner did nothing to show that it was intended for the beneficial interest he had in the property to be different from the legal interest.

The moral of the story is that if you are buying a property with someone else and the legal title rests with all the buyers, you must ensure that if the beneficial interest is different, the appropriate documentation is put in place.

No Fault Divorce Legislation Promised in Next Parliamentary Session

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The process of divorce in the UK has for many years been seen as rather long-winded and tending to produce more conflict than need be. One of the reasons for this is that the grounds which demonstrate an ‘irretrievable breakdown’ of a marriage – the justification for a legal divorce – effectively apportion blame for the breakdown. This can cause the debate to become more argumentative than is necessary.

The Government launched a consultation last year and changes to the system were proposed to bring in ‘no fault’ divorce. These have met with overwhelming approval.

The Government has therefore promised to introduce legislation in the next Parliamentary session, which begins in May.

Mother Placed Under Improper Judicial Pressure to Consent to Care Orders

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The quality of British justice is respected around the world – but there are inevitably occasions when judges overstep the mark. In a family case on point, a mother had her two young children taken into care after a judge dismissed out of hand the  arguments put forward in her favour.

The mother was separated from the children’s father and trouble broke out when he failed to return her four-year-old daughter after taking her on holiday for a week. The mother and others went to his home, causing a fracas, and took the little girl away with them. The mother and other members of her family were subsequently arrested. The children were taken under police protection and placed in foster care.

Three days later, the local authority’s application for interim care orders in respect of both children came before the judge. She repeatedly warned the mother that, if she did not agree to the care orders, she would be stuck with any adverse findings made against her. In that event, the mother was told that the matter would probably be reported to the police and the Crown Prosecution Service.

The mother’s lawyer argued that she had faced a difficult choice and that she had been obliged to take steps to safeguard her daughter’s welfare. The judge, however, described those arguments as ‘nonsense’ and ‘preposterous propositions’ that would ‘fall on deaf ears’. Following a brief adjournment, the mother gave in and consented to the interim care orders being made. However, she soon afterwards became distressed at what had happened and lodged an appeal on the ground that she had been subjected to improper judicial pressure.

In upholding her challenge, the Court of Appeal found that her consent had not been freely given and had been secured by oppressive behaviour on the part of the judge, in the form of inappropriate warnings and inducements. Regardless of the fact that she had been legally represented, the judge’s approach went far beyond firmness and the mother had not received a fair hearing. The Court’s ruling means that the council’s application for interim care orders will be reheard by a different judge.

International Dimension Makes Child Travel Risky

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The welfare of children is always top of the list of priorities of the Family Court when making arrangements following the break-up of a family. This can be especially difficult where the parents are from different countries, as shown by a recent case in which the Court considered the welfare of a child of a Mexican mother and an English father.

When the child, aged seven, had expressed a wish to return to live in Mexico, the CAFCASS official appointed as the child’s guardian recommended that this did not occur. When the child was 18 months old, the mother had taken her to Mexico to visit her family for what was intended to be a short holiday, but had stayed there. It took four years to obtain the return of the child to the UK, in the face of deception and obstructions put in place by the mother.

Recently, the mother expressed the wish to go to Mexico to see her elderly father, and to take the child with her. The mother has formed a new and lasting relationship with another English man and lives in the UK. She claimed to be ‘in a different place’ now. The judge commented at length that there were obvious risks of a repetition of the earlier events if the application were granted.

The hearing made it plain that careful safeguards would be required and a substantial financial bond would have to be put in place by the mother to enable the father to recover the child should legal proceedings be necessary. In addition, part of the earlier separation agreement would have to be redrafted.

As the issue was not capable of resolution at the hearing, a further hearing has been scheduled for mid-March 2019 and a final hearing for July. CAFCASS was reappointed to act as the child’s guardian, with a recommendation that the same officer be appointed.

High Court Decision Underlines the Finality of Divorce Arbitration Awards

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Divorcing couples can sometimes achieve savings of both time and money by opting for arbitration, rather than court proceedings, as a means of resolving any financial disputes. However, as a guideline High Court case underlined, arbitration has its potential downsides and it is vital to remember that arbitrators’ decisions are generally treated as final.

Faced with the prospect of having to wait several months for a court date following the breakdown of their ten-year marriage, a middle-aged couple chose to submit their differences to an arbitrator. He decided that the net capital assets of the marriage should be divided 60 per cent to 40 per cent in the husband’s favour.

Such division was to be achieved by the sale of the family home and was designed to enable each of them to purchase a new property. The wife was awarded 76 per cent of the husband’s pension and he was required to pay her maintenance at steadily reducing rates up to the date of his retirement. The wife was, however, dissatisfied with the arbitrator’s award, arguing that it was untenable.

She claimed, amongst other things, that the arbitrator had failed to take into account her inability to take on a mortgage and the husband’s excessive spending following the end of the marriage. In those circumstances, she argued that the award should not, as is usual, be recognised in the form of a court order.

In ruling on the matter, the High Court noted that arbitration awards are binding in their own right, although they are generally confirmed by court order so that they can be enforced against third parties. However, an arbitration agreement, or an award, does not oust the Court’s jurisdiction under the Matrimonial Causes Act 1973 to investigate the circumstances and make an order in different terms.

The effectiveness of the arbitration scheme, however, depends on awards being generally treated as effective and binding. In pursuit of a swift resolution of the dispute, both husband and wife had freely entered into the arbitration process with the benefit of legal advice. Both had also signed a form by which they signalled their understanding that the arbitrator’s award would in principle be final.

In dismissing the wife’s arguments, the Court found that she had failed to establish any fundamental change in circumstances, or mistake on the arbitrator’s part, sufficient to undermine his clearly reasoned and balanced award. In the circumstances, the Court made an order in the terms of the award.

Sharing Principle – Court of Appeal Gives Guidance

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The application of the ‘sharing principle’ to big money divorces is more than a matter of simple mathematics, and what family judges aim to achieve is a broadly fair outcome for both sides. That was certainly so in one case in which the Court of Appeal refused to increase an ex-wife’s £73 million award.

The former couple had two children who had grown to adulthood during their 26-year marriage and, by the time of their divorce, their overall wealth was valued at £182 million. By far their largest asset was a lighting manufacturing company. There was no dispute that the sharing principle should be applied to the case.

In assessing the wife’s entitlement, a family judge took account of the fact that the company had been founded by the husband eight years before the marriage. Taking a ‘straight-line’ approach to valuing the business at the date of the marriage, he found that the total marital wealth, net of taxes and costs of realisation, was £146 million. The wife’s award came to roughly half that total, £72.8 million.

In challenging the judge’s decision, the wife argued that her award was about £17 million lower than it should have been. Amongst other things, she pointed out that the husband owned half of the company on the date of the marriage, only later acquiring all of it. On that basis, it was said that the judge had underestimated the proportion of the company’s value that had been built up during the marriage.

In rejecting her appeal, however, the Court found that her overall award resonated with fairness. The outcome reflected the judge’s overarching view of the weight to be attributed to the husband’s contributions to the company throughout its existence. It also represented a fair assessment of the true value of what the husband had brought into the marriage via the company.

Also ruling on the husband’s cross-appeal, the Court found that the judge had erred in requiring him to pay the wife a £20 million lump sum within a year. In treating the value of the company as equivalent to cash, the judge had failed to consider whether the outcome achieved a fair division of copper-bottomed, non-risk assets. In order to achieve a broadly fair outcome, the Court ruled that the husband should have to pay the lump sum in four £5 million instalments over four years.

Commercial Surrogacies Abroad Are Not Illegal – Court of Appeal Ruling

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Although commercial surrogacy businesses have long been banned in the UK, the Court of Appeal recently ruled that a clinical negligence victim would not be breaking the law were she to enter into such an arrangement in California, where a more liberal surrogacy regime prevails.

The woman is unable to have children after she developed cervical cancer and had to undergo radical surgery. The NHS trust that was responsible for her treatment was ordered by a judge to pay her almost £600,000 in compensation after it admitted that four opportunities to diagnose her condition earlier had been negligently missed.

The woman wishes to have a family and, prior to the operation, a dozen of her eggs had been frozen. She objected to the UK’s restrictive surrogacy regime, and argued that the trust should pay the costs of her entering into a commercial surrogacy agreement in California, where such arrangements are lawful.

In refusing to make an award under that head, however, the judge in the lower court noted that, under the Surrogacy Arrangements Act 1985, it is a criminal offence to advertise in search of a surrogate or in order to offer oneself as a surrogate. In those circumstances, he found that requiring the trust to fund arrangements in California which would be illegal in the UK would be contrary to public policy.

In ruling on the woman’s challenge to that decision, the Court noted that, under English law, surrogate mothers are not permitted to bear children for reward and can only be paid their reasonable expenses. They remain the legal parents of children to whom they give birth and intended parents must obtain court orders to have their parental rights recognised.

In upholding the woman’s appeal, however, the Court found that the policy of the Act is to criminalise the provision of surrogacies as a business. Individuals who enter into such arrangements are not themselves committing a criminal offence. In those circumstances, the woman was not proposing to do anything illegal under either English or Californian law. It could not, therefore, be said that her desired recourse to commercial surrogacy offended against morals or public policy.

In those circumstances, in the Court’s view it would be incoherent to deprive her of her claim for damages at the outset when she personally proposed no wrongdoing. The purpose of the compensation award was, so far as possible, to put her in the same position that she would have been in but for the admitted negligence, and there was no bar on her recovering the costs of entering into commercial surrogacy in California. The total amount of her compensation should therefore be increased accordingly.

The NHS trust involved has announced its intention to challenge this ruling in the Supreme Court and we will inform you of the outcome of the appeal in due course.

Procedural Unfairness Stops Council Care Action

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When the mother of a teenage daughter who had been taken into care in 2016 with her agreement had another child, the local council’s social services department became involved. The woman’s daughter had been removed from home as a result of her mother’s relationship with the baby’s father. As is often the case in such situations, the family relationship was dysfunctional, having been described as being ‘characterised by alcohol consumed by both parties, but more important and additionally, alcohol which fuelled regular domestic violence within the household’.

Following the birth of her son, care proceedings were issued and the mother and child moved into a mother and baby unit. When analysing the local authority’s application for a care order, the judge took into account that ‘it was accepted by the local authority that the mother’s relationship with the child was "excellent". They were bonded; they had formed a close attachment to each other and with the wider family. There were no complaints whatsoever about the mother’s ability to parent on "a normal parenting basis".’

Concluding that the effect of being separated from the mother would be ‘substantial’ for the child, the judge went on to make a care order that he should live with his mother at home, subject to a written agreement requiring that she stay away from alcohol and the child’s father, and inform social services if there were any incidence of domestic violence on the part of the father.

Some months later, the mother became concerned about her baby’s health and the local hospital diagnosed him as suffering from acute gastroenteritis. The child’s illness led the father to arrive at the mother’s flat in the early hours of the morning and it was alleged that he accused her of being a bad mother and assaulted her. She called the police and the father left. She kept on insisting that her son was really ill and so it was agreed that they be taken to hospital, where he was diagnosed with meningitis. Following that incident, the council declined to return the child to his mother and placed him in foster care.

The mother went to court seeking to challenge the care order. At the child custody hearing that resulted, the father was not given the opportunity to give evidence, despite being present in the court. This was described as a serious error when the decision was appealed. Whilst the mother’s evidence of what had happened that night could be accepted, the finding that the father had committed assault could not stand in the absence of a chance for him to give evidence.

The result of the appeal was that the council’s application was not upheld and the child was ordered to be returned to his mother pending final resolution of the matter.

UK Fairness Test Mitigates Italian Pre-Nuptial Agreement

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The law relating to the division of family assets on divorce varies widely across the world and the UK is generally regarded as one of the fairer jurisdictions for such financial arrangements in that the assets tend to be divided more equally than in many other countries.

Accordingly, where a family with an international lifestyle breaks up and there is a reasonably strong connection to the UK, it is often chosen as the jurisdiction of preference for divorce proceedings by a spouse who might be disadvantaged if the proceedings are conducted elsewhere.

In such instances, it is often important that the proceedings are initiated here. If they are begun under a different jurisdiction, that right may be lost.

It is also the case that different countries have different rules about what sort of pre-nuptial agreements may be enforced.

In such instances, complexities can proliferate. A 2017 case that was heard in the UK dealt with the financial arrangements after the marriage of a couple who had married in Italy in 2008 and had one child foundered. They had entered into an agreement in Italy (‘separazione dei beni’) under which they agreed that the assets that each of them brought into the marriage would belong to them separately and not be split on divorce.

At issue was a massive increase in the value of shares owned by the husband during the course of the marriage. The husband argued that this gain should be retained by him exclusively, the principal reason being the pre-marital agreement.

The wife challenged his assertion. Not only was it unfair, but she had not fully understood the implications of the agreement she had signed, not being Italian. There was also no specific agreement that their property division would be subject to Italian, not English, law.

In the end, the particular facts of the case determined the division of the family assets and the wife’s settlement included only approximately a quarter of the increase in value of the husband’s shares during the marriage.

However, had the divorce been conducted under Italian law, the wife would not have been entitled to any of that increase.

Misled Mother to Lose Home

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It may sound overcautious to say so, but it is always worth taking legal advice before entering into any significant arrangement, even when it is with a trusted member of the family.

Failing to do so has proved to be an expensive lesson for a woman who has now lost her home as a result of an agreement she entered into with her son.

The facts were straightforward. The woman’s son needed money and persuaded his mother to let him take out a mortgage on her home. In order to accomplish this, she had to make her son a joint owner of the house. She believed the sum borrowed would be £32,000, but instead he borrowed £120,000 using the house as security.

When the required repayments were not made, the bank sought to repossess the house for sale. The son was convicted of fraud.

The woman argued that as she had been defrauded, her liability to the bank should be limited to the sum she would have owed had the original mortgage been for £32,000. However, the way the original form had been filled in to add her son’s name to the property title meant that his share of the property was one half. Accordingly, even if the mother’s liability were limited to £31,250 as she argued, the bank could still pursue her son for the balance and force the sale of the property to achieve that end.

Initially, the woman argued that the form used to add her son to the title was not clear and would not convey to a layman that the property would be held in equal shares. She had believed that he would have no legal interest in the property at all.

The High Court dismissed her claim. The bank had not been a party to the conveyance transferring a half share in the property to her son. Its loan was advanced later and it had no reason to believe that the transfer had been the result of undue influence or fraud.

Recalcitrant Husband Banned From Paying His Lawyers Until Arrears Cleared

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It is commonplace for one spouse to control the family finances and, while relations are amicable, this usually causes few issues. However, if the relationship falls apart and separation or divorce is in train, this is often no longer the case.

When a spouse attempts to put pressure on their estranged partner by denying them access to funding to cover their legal fees, this can certainly be a problem, but as a recent case shows, the courts take a dim view of those who seek to deny legal representation to others. The solution was novel and likely to prove effective.

The case in question reached the Family Court after the husband had dragged his feet over filing the required statement of financial means (Form E). Two months after the expiry of the extension date for producing the statement, it had still not been submitted, leading the judge to comment that ‘the considerable delay in producing the Form E after two earlier consent orders setting a timetable for its production is not excusable’. This is the sort of comment that seldom presages good news for the client about whom it is made.

The ire of the Court was further stirred up by the fact that the husband (a wealthy Omani) was some £100,000 behind with the maintenance payments he had been ordered to make. Nor had he made the payments ordered for his wife’s own legal representation – some £120,000 – whilst having paid his own solicitors in the region of £95,000.

The judge’s solution was strict. He issued an injunction against the husband, banning him from paying anything further to his solicitors until he had cleared the arrears due to his wife and paid pound for pound to her any legal costs he had paid to his (or any other) solicitors.

Vaccinations Protect Child's Welfare

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There has been a massive amount of disinformation put about over the years (and, apparently, recently promoted by the Russian security services) regarding the effects of various vaccinations on children.

One result is that some parents are deeply wary of allowing their children to be vaccinated. Recently, the Family Court was asked to decide whether a child’s routine vaccinations should continue after her parents separated: her father is deeply opposed to them. His various arguments in favour of the child not receiving further vaccinations included the claim that they would put her health at greater risk than necessary. He produced more than 300 pages of evidence in support of his arguments.

After hearing his evidence and that of an expert immunologist, the judge ruled that the child’s welfare was best protected by having the vaccinations…the law requiring the Court to consider ‘any harm which the child is suffering or is at risk of suffering’. In this instance, the risk to the child of not having the vaccinations was significantly greater than if she had them.

Child Contact Disputes Can Be Defused by Mediation – But Take Advice Soon

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If parents engaged in child contact disputes take up entrenched positions, it is very nearly always the child that suffers most. Such disputes can often be defused by taking legal advice at an early stage in order to promote dialogue and an amicable resolution. In one case where this did not happen, a father ended up being banned from having any direct contact with his nine-year-old daughter.

Since the parents’ separation, the girl had lived exclusively with her mother, who had married another man. During five years of relentless litigation, the father had been criticised for his bizarre and controlling behaviour. The mother and her husband, however, were said to be determined to extinguish his parental responsibility for the girl and to remove him from any role in her life. They had allegedly encouraged her to call the husband ‘daddy’ and her father by his first name. They had also made, and later withdrawn, a misguided application to adopt the child.

In ordering that the father should have no face-to-face contact with the girl, a family judge noted her hostility towards him and that contact is the right of the child, not the parent. After forming an unfavourable view of the father, the judge restricted him to weekly Skype or telephone contact with the girl and to sending her monthly letters and occasional gifts. The judge, however, expressed the hope that, if the father manages to focus on his daughter, rather than his perception of himself as a victim, direct contact might be re-established in the future.

In dismissing the father’s appeal against the judge’s ruling, the High Court noted that the girl had been caught in the middle of the conflict between her parents. The huge ill will between them was deeply damaging to the child and had achieved nothing. The Court, however, warned the mother and her husband that they owe it to the father to present him to the girl in a positive light and that a failure to do so would be likely to come back and bite them in the future. He remained the girl’s father and it was incumbent upon them to encourage and cooperate with indirect contact.

Wife Must Pay for Her Own Mistakes

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The Supreme Court recently decided a case which made clear some of the limits that apply when financial issues were resolved within a consent order at the time of a divorce but where circumstances have changed over time and one spouse seeks to have the arrangements revisited by the courts.

It concerned an application by the ex-wife of a businessman to have the financial settlement they agreed when they divorced in 2002 revisited.

Under the settlement, the wife received most of the couple’s cash assets – some £230,000 – and maintenance of £13,200 a year for life. She used the capital sum to buy a house with a mortgage as a top-up, but she over-extended herself and by 2015 was in debt and living in rented accommodation.

She applied to have her maintenance increased as she could no longer afford her rent, and her ex-husband applied to have the payments stopped. The argument went to the Court of Appeal, which increased the maintenance payments to more than £17,000 a year. The ex-husband appealed against that order.

The Supreme Court agreed with the ex-husband: the original settlement had taken housing costs into account. His ex-wife’s situation was the result of decisions she had made subsequently and it would not be fair to expect him to foot the bill for those.

Long-Term Partner Wins Right to Stay in House

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Those who doubt the legal advantages of getting married should take note of a case in which an elderly man was left facing homelessness after his partner’s unexpected death and had to go to court to seek reasonable provision from her estate.

The unmarried couple were of similar age and the man expected that, in the natural course of things, he would probably die first. They lived in a house that was in her sole name and, after she died suddenly, her son – to whom she had left almost all her estate – took steps to make him leave the property.

After he took legal advice, proceedings on his behalf were launched under the Inheritance (Provision for Family and Dependants) Act 1975. The claim was hotly resisted by the son, who argued that the relationship between his mother and the man had become more akin to that of a landlady and a lodger by the time she died.

In upholding the man’s claim, however, a judge noted that the circumstances of the case provided an example of the vulnerable position in which cohabitants can find themselves if they unexpectedly survive their partner. The couple’s relationship had endured for about 20 years and they had lived openly as husband and wife for more than a decade.

The judge noted that the woman died on board an aircraft as the couple were going on holiday together. She had complained to friends about his lifestyle and that she had to do everything for him, but it was unfair to characterise him as a mere lodger. She had made it clear that she had no wish to live alone and the relationship contained an element of mutual support. Although they had not married, their commitment to each other was equivalent to engagement. Believing that he would be the first to die, the man had made a will leaving her half of his estate.

He had, in the circumstances, established that he was dependent on the woman for accommodation and was entitled to reasonable provision from her estate. The judge ordered a sale of the home that they once shared and that half the proceeds should be invested in purchasing a new home for the man. That sum would revert to the woman’s estate on his death.

Supreme Court Says No to Divorce Based on Weak Unreasonable Behaviour Claim

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The Supreme Court judges’ decision to prevent a wife from divorcing her husband, which was made ‘without enthusiasm’, is expected to lead to calls for a rapid change in the law.

The case arose after a wife’s application for a divorce was opposed by her husband on the basis that the marriage had not irretrievably broken down. Slightly more than 1 in 1,000 divorce applications lead to a contested hearing on that ground. Under the law, there is an automatic right to a divorce only under a limited number of circumstances.

These are:

  • Divorce without consent can take place where the couple have lived apart for five years;
  • A couple who have lived apart for two years can divorce with the consent of both spouses; or
  • A couple can divorce where there is an irretrievable breakdown in the relationship. This can be evidenced in several ways, including adultery, but the essence is that the behaviour of the spouse is such that the other spouse cannot reasonably be expected to live with him or her. In this instance, the husband’s behaviour, though far short of what might be expected in a normal loving relationship, was not so egregious as to meet that test.

In this case, the husband believed that a reconciliation was possible, and the couple had not lived apart for five years.

When a petition for divorce is made on the ground of unreasonable behaviour, the normal practice is for such behaviour to be dealt with very briefly, as a detailed exposition can increase the ill-feeling at what is always a difficult time and that in turn can make other aspects (such as the residence arrangements for children and the financial arrangements) more difficult to negotiate. The wife’s evidence in respect of her husband’s behaviour was therefore limited. For example, in regard to one aspect (that he belittled her in front of others) she called no witnesses to the first court hearing to support her claim.

The appeal to the Supreme Court dealt in essence not with the husband’s behaviour as such, but the effect it had on his wife.

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