HNW Divorce Issue 15 by thoughtleaders4

INTRODUCTION

“Success is not final, failure is not fatal: it is the courage to continue that counts.”

Winston Churchill

We are delighted to present the final issue of 2023, our HNW Divorce Litigation Conference Edition which has been published following the success of this week’s conference, which took place on Thursday 23rd November.

This publication features a poignant collection of essays from the inaugural Future Thought Leaders Essay Competition. Our entrants share their insights into navigating divorce and matrimonial finance. These compelling narratives shed light on the emotional, legal and financial dimensions of divorce, and provide advice to our readers on dealing with the uncharted terrain of parting ways. Congratulations to our winner Emily Venn of Harbottle & Lewis, and our 2nd and 3rd places, Neeva Desai and David Carver of Charles Russell Speechlys.

Thank you to all our contributors, members and community partners for their consistent support in the HNW Divorce Community. We draw close to another year, but we look forward to welcoming you in 2024 for a new tranche of events.

Paul Barford Founder/Managing Director

020 3398 8510

email Paul

Danushka De Alwis Founder/Chief Operating Officer 020 3580 5891

email Danushka

Anne-Sophie Hofmann Strategic Partnership Executive 020 3398 8547

email Anne-Sophie

Chris Leese Founder/Chief Commercial Officer 020 3398 8554

email Chris Maddi Briggs Strategic Partnership Senior Manager 020 3398 8545

email Maddi

Maximus McCabe-Abel

Strategic Partnership Executive 020 3998 9908

email Maximus

Through our members’ focused community, both physical and digital, we assist in personal and firm wide growth. Working in close partnership with the industry rather than as a seller to it, we focus on delivering technical knowledge and practical insights. We are proud of our deep industry knowledge and the quality of work demonstrated in all our events and services. Become a member of HNW Divorce and...

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Michael Finnegan, Burges Salmon

Sonia Limbada, Divorce Consultants

Victoria Cure, Carey Olsen

Nicola Fox, 1KBW

Michelle Cartwright, Golden Acorn Financial Planning

Ana Rebec, Golden Acorn

Financial Planning

Scott Sharp, Westgate

Chambers

Nick Vamos, Peters & Peters

Ceri Griffiths, Willow Brook

Lifestyle Financial Planning

Jennifer Dickson, Withers

Charlotte Newman, Stowe

Family Law

Emily Venn, Harbottle & Lewis

Neeva Desai, Charles Russell Speechlys

David Johnson,

A FRESH START: WEALTH MANAGEMENT POST-DIVORCE

For someone who has gone through a divorce and finds themselves managing their finances independently, the risks associated with financial decision-making can be a real concern.

We provide guidance on how to manage and sustain a settlement in the longer term, making it work for a lifetime. Our role is to guide our clients during this pivotal time, unravelling the complexities to ensure that their financial position can be understood, and the right decisions are made.

To arrange an introduction, please call 020 7396 3388 or, email us: invest@londonandcapital.com

JENNY JUDD Director JESSICA CRANE Executive Director

PRACTICAL CONSIDERATIONS IN FORUM DISPUTES

Authored by: Michael Finnegan (Associate) – Burges Salmon

In the nearly two years since 1 January 2021, when the UK left the EU and ceased to be a signatory to Brussels II, family practitioners in England and Wales and their clients have found themselves facing a variety of new challenges. One such challenge was the change to the rules on jurisdiction in cases involving competing divorce applications in two European jurisdictions, and a reversion to the forum conveniens principle. Whilst this was already the applicable rule in relation to forum disputes involving England and non-EU jurisdictions, the result of English/European cases being dealt with under this principle invariably meant that practitioners could anticipate dealing with a much higher volume of forum disputes.

Nearly two years on we can see that as predicted this has been the case, and the legal basis for this has been well documented and discussed since Brexit.

However, as these continue to become more commonplace it has become

possible to identify some useful working practices and tips for cases in which practitioners may be instructed by an EU-based client in an English forum dispute.

When such an application is made to the English court, it has a very wide discretion and will take into account a variety of factors, such as:

The parties’ nationalities and domiciles

Law and Procedure

Where the children were born and where they are, or will be, educated.

Where the parties’ extended family live

Where the parties plan to retire

of and stage reached in

Prior to Brexit, and under Brussels II, jurisdiction was based on who was first in time to issue. The reversion to the forum convenience principle means that in cases of competing jurisdictions, an application of needs to be made to the court and proceedings will be necessary in order to decide which is the more convenient and appropriate forum. Whilst the forum dispute is ongoing, the divorce proceedings in both jurisdictions should be stayed, pending the outcome of the forum dispute.

11 Availability of witnesses and documents

12 Likelihood of participation in continuing English

Generally, upon an application being made, the court will direct for the parties to complete witness statements setting out their case on why they say one jurisdiction is more appropriate than the other, followed by a substantive hearing in order to hear evidence and make a decision.

Whilst regard of course needs to be had to the legal points and discretion of the court, various practical points should be borne in order to maximise the chances of successfully making or defending an application.

Making the Application

The application should be made by the Respondent to proceedings in the jurisdiction they do not agree with and should be made as soon as possible in the proceedings before any substantive steps have been taken in the action. This is partially to avoid wasting costs by engaging in an action that may be stayed, and partially because any such steps may result in a stay not being granted.

Whilst the first in time rule is no longer determinative, it may still be taken into account as part of the court’s discretionary balancing exercise, so divorce proceedings should be issued in the preferred jurisdiction as early as possible.

Preparing the Witness Statement (with a Language Barrier)

Given the variety of factors to be taken into account, is important to take detailed and comprehensive instructions from clients. Details about their family and cultural background, and that of their parents and children; as well as the history of the relationship and marriage, will be just as important as aspects such as location of assets and

the status of the proceedings in each country.

Whilst language barriers can make the proceedings overall more difficult, this is most evident when preparing a detailed a 15 or 20 page witness statement. Consideration should be given from the outset as to how lawyers will communicate with their clients. For example, a translator could be used or communications could be via the lawyers instructed in the client’s home jurisdiction, though this is likely to significantly increase costs for the client.

Enquiries should be made to find out if they have a family member or friend who speaks English and is prepared to act as an intermediary when giving instructions.

When preparing the witness statement for a non-English speaker, particular regard must be had to FRP practice Direction 22A and the source of the information, to ensure the wording is carefully checked with the client and translated to ensure it is clear which matters are within the client’s own knowledge, and which are matters of information and belief, and that they clearly understand what is being said in the statement.

When agreeing directions and deadlines for the preparation of statements, time

needs to be built in for the extra delay the language barrier will cause. For example, you may think that with two weeks until the court deadline and an almost complete statement, this is plenty of time to finalise it. However assuming the statement has been prepared by the lawyers in English it will need to be translated to the client’s language for them to review and make any changes. It will then need to be translated back to English in order to be lodged with the court. Depending on the length of the statement and exhibits, each round of translation can take up to a week. If further substantive amends are required and therefore further translation, this can be even longer.

Cultural and Legal Differences

Given a forum dispute by nature means two sets of proceedings in two jurisdictions, the client will likely have their own lawyers instructed in their home country. This can cause difficulties as the process and way the courts work may be different there. This can mean having to advise both them and their lawyers on why certain things have to be done in the English process, and having to give additional advice or persuasion if they are resistant to this due to the system they are used to.

In the event disclosure is ordered in the English proceedings, a less thorough duty of disclosure in the client’s home country can mean they and their lawyers are less willing and/

or less able to provide the evidence required, if they would not have to provide this for the foreign proceedings. Additional due diligence on the part of the English lawyer may therefore need to be carried out in order to ensure the client has complied with their disclosure obligations and does not inadvertently harm their case in the English proceedings.

behind the scenes whilst the forum dispute is ongoing. Exchange of Forms E (or another form of financial disclosure if preferred) can be agreed, as can the relevant principles to be applied (again on a Without Prejudice basis, given the reason for the forum dispute will presumably be conflicting outcomes likely in each jurisdiction).

The parties may therefore be able to reach settlement before a decision has been reached on jurisdiction, in a situation where if it

were not for the daunting prospect of drawn-out forum proceedings, they may have been less inclined to do so.

Conclusions

The client’s location also needs to be considered. A European based client may be expected by the court to attend the substantive hearing so that they can give evidence and be cross-examined in person, whereas in non-European cases the English court is likely to be more amenable to a remote hearing or video link. The client should be advised of this from the outset, and the potential harm to their case if they resist the court’s directions. If the client is unable to travel this should be made clear as early as possible and certainly no later than the first directions hearing, along with medical or other evidence in support.

Potential Benefits

Whilst forum proceedings will mean additional delay, cost and stress for the client, the implications are not all negative.

When faced with the significant costs and delay of a forum dispute before divorce and financial remedy proceedings can even be started, parties may be more open to negotiating on a without prejudice

Whilst forum disputes are nothing new for family lawyers, their use in English/ EU proceedings mean they have become, and will continue to become, much more common. The discretionary and uncertain nature of the tests the court will apply mean it can sometimes be difficult to manage the expectations of clients, but by developing consistent and proven working practices lawyers can ensure that unnecessary costs, delay, and disappointment for client are kept to minimum.

SIMPLE STEPS TO INTELLIGENT DECISIONS 2

Authored by: Sonia Limbada (Divorce Recovery Coach) – Divorce Consultants

Divorce is dominated by uncertainty, especially in the context of a high net worth divorce. There are so many considerations: pre or post nuptial agreements, attempts to hide assets, ringfencing non-matrimonial assets, fraud/deceit, complex financial structures, discrepancies between the amount of matrimonial assets each party claims there is, disputes surrounding child arrangements, to mention but a few.

In situations of high stress, where so much is at stake, our nervous system gets stuck in the fight, flight, or freeze danger response, and the executive functions that help us with advanced thought processes like strategy, negotiation, and understanding shut down. This is when the amygdala (our emotional brain) takes over. The emotional brain is where our feelings, emotional wounds and memories are stored. This means when it comes to decision making during divorce, often there is more emotion involved than there is conscious thought.

Thinking solely from the emotional brain distracts us from resolution and leads us to dysfunctional decision-making processes where we: 1 Seek emotional justice,

Make guilt/stress-based decisions,

Avoid taking necessary action, 4 Disengage from the process by shutting down, 5 Get stuck in decision paralysis/ decision fatigue,

Overthink/catastrophise, 7 Disregard long-term impacts of our decisions,

8 Make emotional decisions, and/or

9 Make fear based decisions and allow manipulation.

In essence we lose control and become powerless victims at a time when we should be active participants in our own lives.

So how do we take back our control and make value based decisions?

The simple answer is, we need to be more intentional. Intelligent decision making is an intentional act that requires conscious thought and strategy.

We can’t just be heart led; we must actively involve the conscious mind also. The two most simple yet powerful ways to involve our mind is to reframe problems as questions and to think on paper.

Reframe Problems as Questions

Reframing problems as questions is a crucial life skill. The idea isn’t just to ask questions, but to ask quality questions.

Asking quality questions should be at the core of any divorce strategy.

Quality questions help us to reset the nervous system and bring us back into our consciousness. They shift our entire thinking process and make us solution based rather than problem focused.

When we ask the right questions, we give ourselves space to think strategically rather than emotionally.

Quality questions are questions that help us to elicit useful information, expand our understanding of the situation and move the discussions/ negotiations forward:

1 What step can I take in the next 24 hours to help myself through this?

2 Who do I need to get advice from?

3 What information can I gather to improve my understanding of the situation?

4 What is blocking these negotiations from moving forward?

5 How can I get clarity on what’s concerning me?

6 What specific outcomes am I looking for?

7 Am I allowing my emotions to pollute my decision making? Am I falling into thinking traps and catastrophising?

8 Who can help me to process my emotions?

9 What is another way of looking at this situation?

10 If I was showing up as my most courageous self, what decisions would I make?

Contrast these quality questions with the dead-end statements such as: ‘This is not fair,’, ‘He’s trying to control me,’ ‘She’s trying to ruin me,’ and it is easy to see how better questions can lead to better decisions.

writing to zero in on the areas that move the discussions forward.

Step 3 Get clarity. Ignorance can be costly so a fast step to making value based decisions is clarity. Clarity fuels our decisions. Identify the gaps in your thinking and brainstorm what information you need to fill in these gaps. Then gather the necessary information from reliable sources.

Step 4 Create some distance between you and the issues – in other words once you have all the necessary information organised on paper, take a step back and sleep on it. Creating a distance between ourselves and our problems, after we have consciously engaged with them, gives our creative problem solving skills room to grow.

Step 5 Finally, use the information you have collated to map out (in collaboration with your divorce team) possible solutions/points of negotiation with the aim of moving towards a resolution.

THINK ON PAPER

Before we engage in decision-making, we must engage in decision-thinking and the best way to become an effective thinker is to think on paper.

Writing is a powerful, thinking tool. Thinking on paper, as opposed to mentally pondering about our situation, gives us an objective perspective on our problems. But this isn’t just about journalling out our feelings about how badly our divorce is playing out; we must follow a formula to spark our creative problem solving skills. The five elements crucial to thinking effectively on paper are as follows:

Step 1 Declutter the mind. Transfer your thoughts on paper. Writing in full sentences, with a pen and paper, helps to slow us down which reduces catastrophic/over thinking.

Step 2 Filter out the facts from the emotions. This is the single most important step in any decision-making process. We don’t want to ignore our instincts however we don’t want to allow our emotions to pollute our thinking either. So, review what you have written and ask yourself, ‘What are the facts, what are my feelings and what are my gut instincts and how are each of these areas impacting my decisions?’ Once you answer these questions, reorganise your

Research has shown that when we write things down on paper, we activate multiple brain regions, including the prefrontal cortex, the area of the brain used for rational decision-making.

Thoughts transferred onto paper, coupled with the right questions, cultivate better thinking; and better thinking cultivates better decisions.

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A PRACTITIONER’S INSIGHT INTO FAMILY LAW IN JERSEY

Many practitioners will know that Jersey is a self-governing Crown Dependency, with constitutional rights of selfgovernment and judicial independence – we have our own government, legislation and, whilst Sterling is the currency, we have our own banknotes. A common question we are often asked is a practical one: how different is family law in Jersey to that in England and Wales? Hopefully this article will give you an overview of some of the key similarities and differences.

In short: it’s very similar, but it’s also very different.

Authored by: Victoria Cure (Associate) – Carey Olsen

Jersey is the largest of the Channel Islands, measuring approximately 9 miles by 5 (the same size as zone 1 in London), and has in the region of 103,000 residents. Jersey is a highly regulated and stable International Finance Centre (“IFC”) and there is in the region of £131bn of deposits in the island. We have a diverse economy, but the impact of the financial services industry means there is a sophisticated workforce and some significant wealth. Whilst only a 1-hour flight from London, it is geographically closer to France, sitting just 14 miles off the French coast.

English is Jersey’s spoken language, though Jèrriais is Jersey’s traditional language and is still taught in schools.

A fused profession

The Family Court

Family cases in Jersey are heard before the Family Division of the Royal Court of Jersey and most private cases are heard by one of the two family Registrars. Where a case is particularly complex it can be referred to the Royal Court – the Bailiff, Deputy Bailiff or Royal Court Commissioner sitting with two Jurats (lay people who act as judges of fact). The Family Division of the Royal Court hears all public children cases.

The Family Division Registrars moved to new premises over a year ago. The new premises provide a modern, bright and more relaxed setting for court hearings and have a number of comfortable, air-conditioned meeting rooms. It’s clear that the design of this new home was carefully thought through to enable parties to feel more comfortable and encourage settlement.

Only Jersey Advocates have rights of audience before the Royal Court. Jersey has a fused profession and whilst we do have Jersey-qualified solicitors (who have rights of audience before the Registrars), they are less common. It is more usual for Advocates,

as well as undertaking the advocacy on a matter, to also have day-to-day responsibility for a case, assisted by members of their team.

The law

Despite the heavy influence of French law in the islands, the approach of the Royal Court to family law matters closely follows that adopted in the courts of England and Wales and Jersey legislation (most notably the Matrimonial Causes (Jersey) Law 1949 (as amended) and the Children (Jersey) Law 2002) is largely based on the relevant family law acts passed in England and Wales.

The approach adopted by the Jersey Family Division to ancillary relief cases almost identically mirrors that in England and English case law regularly features in our court bundles (normally beneath a Jersey case adopting the English position). Whilst we do not have FDRs as part of the Court process, private FDRs have been enthusiastically adopted as a means of ADR and English barristers are routinely instructed to act as the ‘judge’ in this forum.

There are, however, some key differences. Three of the significant differences are:

1 We do not yet have no fault divorce. It remains the position that parties who have not yet been separated for 1 year (with their spouse’s consent) or 2 years (without their spouse’s consent) will most likely need to rely on adultery or their spouse’s unreasonable behaviour to petition for divorce. We have a 3-year bar in Jersey. Members of the profession are in discussion with Ministers in respect of the

introduction of no fault divorce and it is hoped that it may soon be introduced.

2 We do not have a Child Maintenance Service in Jersey –applications for child maintenance are all made pursuant to Schedule 1 Children (Jersey) Law 2002.

3 The Family Division of the Royal Court does not have jurisdiction to make pension sharing orders and the Court is therefore reliant on offsetting in seeking to achieve fairness between parties.

Compulsory legal aid

Jersey has a relatively generous legal aid system compared to England. The Legal Aid scheme is administered by the Bâtonnier, the head of the Jersey Bar, on behalf of members of the Jersey legal profession. All Jersey qualified lawyers less than 15 years call are named on the “ Tour de Rôle”, which is a list of lawyers to whom legal aid cases are allocated in rotation. At larger full-service firms, legal aid certificates issued to Jersey lawyers in other teams are serviced by that firm’s family team. It is therefore usual for family lawyers in Jersey to have a broad range of experience working on a full spectrum of cases.

We are always happy to chat about Jersey family law. If you would like to continue the conversation, let us know.

60-SECONDS WITH:

NICOLA FOX BARRISTER

Why did you choose a career path in the legal industry?

Before coming to the bar, I worked as a clinical psychologist, in particular with children and families. I became interested in family law through that work.

What do you see as the most important thing about your job?

Helping clients find solutions.

What motivates you most about your work?

Clients and the variety of the work.

What is one work related goal you would like to achieve in the next five years?

Do more combined arbitrations for children and finance matters – in suitable cases.

What has been the best piece of advice you have been given in your career?

To remove all unnecessary adverbs and adjectives from skeleton arguments and position statements.

What is the most significant trend in your practice today?

In finance work more cases being dealt with out of court by way of private FDRs and arbitrations. In children work, delay in the court proceedings leading to great unfairness to one party and to the ‘status quo’ whilst one party waits for the court to determine the application often prevailing.

Who has been your biggest role model in the industry?

Mr Justice Mostyn. I was lucky enough to see his advocacy when he was at the bar on many occasions. When I was a pupil at QEB he was often led by Florence Baron and Paul Coleridge, though I suspect they would have said it was the other way round.

What is one important skill that you think everyone should have?

To speak at least two languages.

What cause are you passionate about?

Education, particularly in early years

Where has been your favorite holiday destination and why? North of the Arctic Circle in Finland – unspoilt remote landscape, pristine deep snow, the Northern Lights.

Dead or alive, which famous person would you most like to have dinner with, and why?

Fyodor Dostoevsky – in my view the greatest novelist of all time. All aspects of the human condition are explored within his books. Everyone should have read ‘Crime and Punishment’ at least once. He lived an extraordinarily interesting life, including having his books banned, spending many years in a prison camp in Siberia and losing a lot of money gambling.

“They are as strong on money as they are on children and they’ve got strength and depth in both silks and juniors.”

- Chambers & Partners, 2020

1KBW has a pre-eminent reputation in family law, both nationally and internationally. We are consistently ranked by the legal directories in the top tiers of leading sets for family law, and are unique in our strength in depth for both finance and children cases.

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One King’s Bench Walk

"The dream team"

The Legal 500 UK 2021

We are recognised nationally and internationally as a dynamic and strategic team of family lawyers, known for our expertise in both complex ﬁnance and high proﬁle children cases.

We assist clients at all stages of their lives, whether at the beginning of a relationship and planning a future (for example before a wedding or when relocating to the UK) or at the end. Many of our clients or their spouses have international connections, are high net worth individuals and city professionals, or individuals with a public proﬁle.

For further information about our practice, please use the contact details below.

Kingsley Napley LLP is

FINANCIAL PLANNING IN DIVORCE SETTLEMENTS

The divorce is final, and the financial settlement has been agreed. Now what? This can be a daunting prospect for the receiving spouse especially if they previously relied on their ex-spouse to manage the finances. In addition to the stress, anxiety, guilt, and other feelings brought on by the divorce, the individual is suddenly faced with a barrage of emotions associated with managing wealth. The weight of the responsibility can be quite overwhelming, especially where there are children involved. How do I budget? Where to invest? Will the money last? How do I protect myself and my children? What about rising school fees?

This is where a financial adviser can add significant value. We have a duty of care to our clients to provide support if they have any vulnerability (health, life events, financial capacity and/ or financial resilience), and offer an opportunity to have a trusted third-party present to help with decision-making.

Financial psychologists have determined that the way you think and feel about money, whether to spend, save, invest, or gift it, will drive your behaviour.1

Clearly if someone is emotionally vulnerable following a divorce, or lacks understanding and experience of investing, i.e., lacks financial capacity, they may not feel confident in making big decisions and may make ill-advised, hasty choices.

These developments have not been lost on the regulator. The FCA (Financial Conduct Authority) is responsible for regulating financial services firms and the financial market in the UK.

One of their objectives is to protect consumers and their latest survey indicates a surprising number of UK adults, 47% (24.9 million) show one or more characteristics of vulnerability.2 These characteristics are situations or circumstances that may impact or impair a person’s ability to make important financial decisions. One of these, unsurprisingly, is divorce. Furthermore, mediation is being used increasingly to facilitate dispute resolution as divorce court proceedings can be terribly daunting.

1 Fallow, Sarah (2021) ‘What is the Difference between Financial Psychology and Behavioural Science?’ Datapoints Blog posted 18 November; updated 9 December. Available at: https://datapoints.com/2021/11/18/financial-psychology-behavioral-finance/#:~:text=Financial%20Psychology%20Encompasses%20Behavioral%20Finance,is%20subsumed%20 within%20financial%20psychology. (Accessed 23/10/23).

2 FCA (2022) ‘Financial Lives 2022 Survey: insights on vulnerability and financial resilience relevant to the rising cost of living’. Data Published 20/10/22 and Updated 26/7/2023. © The Financial Conduct Authority. Available at: https://www.fca.org.uk/data/financial-lives-2022-early-survey-insights-vulnerability-financial-resilience#lf-chapter-id-summary-findings. (Accessed 23/10/2023).

Authored by: Michelle Cartwright (Director) and Ana Rebec (Director) – Golden Acorn Financial Planning

A client may have more than one characteristic of vulnerability requiring additional support and understanding. To illustrate the magnitude of the situation: in 2021, there were 115,756 divorces in England & Wales3; just under half of adults have a numeracy age of 11 or below4; one in 11 people over the age of 65 have dementia in the UK5 and 35.9% have not been formally diagnosed6; and in 2022 there were 577,160 deaths in England and Wales7, leaving millions coping with bereavement.

As financial advisers, we and the regulators take vulnerability seriously and especially with the advent of consumer duty rules – ensuring good client outcomes is paramount. This means that we must take extra care when dealing with vulnerable clients. However, this is far from a box ticking exercise to satisfy a regulator; by taking extra care and conducting proper due diligence this ensures that we are being inclusive and giving everyone the chance to obtain appropriate advice, whatever the circumstances, and that can only be a good thing.

Some people question the value of having a Financial Planner involved during divorce proceedings, after all, they already have to deal with a whole host of professionals including lawyers, mediators, estate agents, bankers etc., so why complicate matters by involving yet another person thrown in the mix? The Financial Planner can be a critical element of the divorce settlement process, particularly if the client has limited experience in financial matters.

In addition, a Financial Planner can ensure that the client receives sound financial advice and validated projections completely outside the scope of interference from a former spouse or other unwelcome individuals.

Prior to formulating a financial plan, we spend time with our clients, understanding them, finding out about their dreams and aspirations, their concerns and worries and what their ideal future looks like for them and their family.

Through a process of handholding and education, we help our clients to arrive at a financial plan that suits their needs and at a pace with which the client is comfortable. It may require a few meetings in person instead of digital media; this can really help to connect with the client and gauge their body language. Empathy is enormously powerful too, sharing stories and experiences can make a client feel more at ease and willing to open up.

Once a divorce has been finalised, a client may find themselves in receipt of a significant settlement. This may require giving the client a bit of breathing space and investing the money in low-risk options to begin with, before launching into cashflow analysis, budgeting, or the pros and cons of ISAs, pensions, tax efficient wrappers, estate planning and protection insurance. Consider a client who decides to take a 3-month sabbatical from work following their divorce to spend more time with their children while they adjust to the new reality. In the meantime, the adviser can recommend a simple cash management solution and create a short-term income plan while gathering relevant data and conducting research for the client’s overall financial plan.

For the Financial Adviser, having this extra time is advantageous as it can be used to prepare an updated

cashflow modelling analysis of the negotiated settlement as conditions may have changed in the interim, and to doublecheck that there would be no future shortfall. For the client, gaining knowledge and understanding of their finances is a vital first step, and the initial meetings provide an opportunity to build rapport and for the client to feel more confident.

Recommendations can

be made when they are finally ready to take it all in, together with the support of a trusted family member or friend. Armed with newfound knowledge, they can feel more empowered and ready to face a new future.

In conclusion, listening and paying attention to the unique situations faced by clients is so important. The divorce may be final, but the client’s financial journey is just beginning, and as financial advisers we want to make the transition smooth and painless for our clients to provide them with peace of mind and improve their financial wellbeing. Dealing with the whole person including addressing any vulnerabilities is not only essential, but it can also be extremely rewarding for both adviser and client.

3 © ONS (2023) ‘Vital statistics in the UK: births, deaths and marriages.’ Dataset Released 24 February 2023. Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/ populationandmigration/populationestimates/datasets/vitalstatisticspopulationandhealthreferencetables.(Accessed 23/10/2023). Contains public sector information licensed under the Open Government Licence v3.0 https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

4 National Numeracy (2023), ‘Number Confidence and Social Mobility’ Report Published April 2023. Available at: https://www.nationalnumeracy.org.uk/about-us/research-and-impact. (Accessed 23/10/2023).

5 NHS Digital (2023) ‘What is Dementia?’, posted 20 July 2023. Available at: https://www.nhs.uk/conditions/dementia/about-dementia/what-is-dementia/#:~:text=How%20 common%20is%20dementia,have%20dementia%20in%20the%20UK. (Accessed 23/10/2023). Contains public sector information licensed under the Open Government Licence v3.0 https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

6 NHS Digital (2023) ‘Primary Care Dementia Data, August 2023’ Report published 21 September 2023. Available at: https://digital.nhs.uk/data-and-information/publications/ statistical/primary-care-dementia-data/august-2023. (Accessed 23/10/2023). Contains public sector information licensed under the Open Government Licence v3.0 https://www nationalarchives.gov.uk/doc/open-government-licence/version/3/

7 © ONS (2023) ‘Death registration summary statistics, England and Wales: 2022’, Released 11 April 2023. Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/ birthsdeathsandmarriages/deaths/articles/deathregistrationsummarystatisticsenglandandwales/2022. (Accessed 23/10/2023). Contains public sector information licensed under the Open Government Licence v3.0 https://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

MATRIMONIAL AGREEMENTS: IS IT TIME FOR CERTAINTY IN AN UNCERTAIN WORLD?

Authored by: Scott Sharp (Barrister) – Westgate Chambers

More than ever the Courts are encouraging parties to come to agreements to resolve disputes between themselves for a variety of reasons; be it to reduce delay, costs, or manage the sheer volume claims proceedings through the Courts. It therefore seems to raise the questions of why pre and post nuptial agreements (matrimonial agreements) still are not deemed legally binding within the UK legal system.

Historically, it was viewed that one party could not by their own covenant prevent themselves from ‘invoking the jurisdiction of the Court or preclude the Court from the exercise of that jurisdiction’1 This of course being said in the context of the era, but it would appear the law, whilst advancing, has not done so in the line of the views of an ever-developing society.

Radmacher (formerly Granatino) v Granatino2 was determined over a decade ago and yet remains the highest authority for marital agreements to date. Within the same, the UK Supreme Court 1

made it clear that no matter the time at which agreement was entered into, pre or post nuptial, upon separation the Courts should apply the same principles when considering such agreements.

Further, the UK Supreme Court demonstrated that enforceability of matrimonial agreements was retained as a judicial exercise, the Court only being bound to have regard to them. The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances

prevailing it would not be fair to hold the parties to their agreement.3

For further information on Radmacher and the key principles that followed I refer the reader to my colleagues, Ms Cerys Sayer, article in issue 12 of ThoughtLeaders4 HNW Divorce Magazine titled ‘Will you be attaching a prenup to your proposal this Valentine’s Day?’

Case law since Radmacher has continued the discussion on matrimonial agreements. The Courts application of the principles set out by the Supreme Court, and the circumstances in which a matrimonial agreement; will be adhered to, won’t be adhered to, or might be given some weight remains open.

Mostyn J provided a judgement that it would only be in an unusual case that a party will be taken to have freely entered into a matrimonial agreement with a full appreciation of its implications without legal advice and full disclosure.4 However, more recently Peel J said that sound legal advice was desirable but not essential, and absence of legal advice is not a vitiating factor.5 The Court have been willing to afford no weight to an agreement where it viewed the party had no understanding of it, nor given any thought to the implications of it.6

The Court of appeal further added to the plethora of following guidance in setting out that the Court was still obliged to take into account all the section 25(2) factors even if a binding agreement had been established save for meeting the needs of one party. The Court could interfere with the terms of an agreement to satisfy those needs.7 It remains an exercise of the Court to consider all the section 25(2) criteria when making a financial remedies order.8

A cursory review of the published cases since Radmacher would appear to demonstrate the Court still have a reluctance to enforce, in part or full, matrimonial agreements. They either do not meet the principles as set out in Radmacher, or they do not achieve the Court’s fundamental view of fairness even when the agreement can be found to have no vitiating factors against it, and the party received full legal advice.9

It is notable that matrimonial agreements are becoming ever more popular. Recent studies report that since the early 2000’s a fifth of first-time marriages with the UK have a prenuptial agreement in place, one could only adduce this demonstrates the social attitude and desire for certainty upon separation.10

Moor J has also expressed ‘These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide certainty.11 It is therefore surprising that the law on matrimonial agreements and the judicial application of enforceability remains uncertain. Whilst an agreement is not legally binding, it remains in the ethos of interpretation of the judicial exercise under the section 25(2) and may be deemed enforceable. Until matrimonial agreements are deemed by default enforceable, a need which the social position may be more inclined towards, a different approach to secure some certainty is needed.

Simplifying the application of the Courts, the enforceability of a matrimonial agreement often boils down to the questions of time since the signing of the agreement, and the circumstances under which it was made, relative to the circumstances presented to the Court when an order is being sought.

Unfortunately, matrimonial agreements are often signed and forgotten about for many years until separation which dilutes the terms drastically.

For anyone considering a matrimonial agreement the need to regularly update and review them would appear fundamental, and a period of five years springs to mind as a useful milestone. It may be advisable to build into the agreement a ‘end date’ or review period and if not renewed or updated the parties do not seek to present it to the Court seeking enforcement of those terms, whilst it still may be relevant on some factors as intent of the parties during the course of the marriage.

If enforceability is important for either party, renewing or updating whilst incurring additional expense would appear to be the most critical way of being able to best secure the Courts support for the same. It would also likely save expense of protracted litigation that matrimonial agreements tend to currently attract, as practitioners should

4 Kremen v Agrest (Financial Remedy; Non-Disclosure: Post-Nuptial Agreement) [2012] EWHC 45 (Fam)

5 HD v WB [2023] EWFC 2

6 D v D (Financial Remedies: Pre-martial agreements and unequal shares) [2020] EWHC 857 (Fam)

7 Brack v Brack [2018] EWCA Civ 2862

8 §25(2) Matrimonial Causes Act 1973

9 DB v PB (Pre-nuptial Agreement: Jurisdiction) [2016] EWHC 3431 (Fam)

be able to take a narrower view for their clients on the presented facts given the limited time that the facts would present since signing of the agreement.

Whilst it can be very difficult to approach your partner and discuss the possible end of the relationship and financial circumstances, once that conversation has been had and understood by both parties a continued dialogue through the length of the relationship is the best open way to deal with the unpredictable. If a matrimonial agreement is right for you and your partner do not allow the position to be, or believed to be, a onetime deal.

10 Press Release from Marriage Foundation Release Date: Sunday 29 August 2021. Supporting research paper by Harry Benson, August 2021

11 MN v AN [2023] EWHC 613

60-SECONDS WITH:

NICK VAMOS PARTNER PETERS & PETERS

Imagine you no longer have to work. How would you spend your weekdays?

I would move to the Canadian Rockies and alternate between skiing, reading, hiking, moonlighting (badly) at a repair shop and making my own sausages from the local fauna.

What do you see as the most important thing about your job?

Contributing to a legal system that always strives to achieve a just result and sometimes succeeds.

What motivates you most about your work?

Trite but true, but you can’t beat working on interesting cases, with people you respect and whose values you share.

What is one work related goal you would like to achieve in the next five years?

To hand all my time-recording over to an AI bot.

What has been the best piece of advice you have been given in your career?

Don’t try to plan it too much.

What is the most significant trend in your practice today?

Right now, the huge gap between government and law enforcement rhetoric on tackling fraud and the reality. Looking forward, the ability to recruit AI disclosure reviewers in the metaverse and pay them in crypto.

Who has been your biggest role model in the industry?

Sue Hemming, my former boss at the Crown Prosecution Service, whose judgement of legal risk in almost every situation was impeccable.

What is one important skill that you think everyone should have?

Irreverence.

What cause are you passionate about?

I’m still looking. I try and do the best I can by everyone around me in the meantime.

Where has been your favorite holiday destination and why?

The Canadian Rockies, for the skiing, hiking and moose sausages.

Dead or alive, which famous person would you most like to have dinner with, and why?

Bob Dylan, whose songs mean a lot to me. I would try to pluck up the courage to ask him what he was really on about.

ECONOMIC TURBULENCE AND ITS IMPACT ON NON-WORKING SPOUSES

Over the past few years, our news cycles have been a whirlwind of political unrest, health crises, economic downturns, and notable financial market

We are facing clients who are not just anxious about their divorce, but also about how these financial crises’ may impact them during and after divorce.

Authored by: Ceri Griffiths (Financial Adviser and Founder) – Willow Brook Lifestyle Financial Planning

expanding their networks and honing their expertise, often holding the reins over financial negotiations and insights. This imbalance is starkly highlighted during economic slumps, where a sharp financial acumen is even more vital.

For those non-working spouses removed from the daily pulse of business or domestic finances, the

Lacking this insight, a non-working spouse may face the divorce process with heightened fear and anxiety.

When fear seeps into the equation, the typical fight, flight, or freeze responses kick in, and none of these instinctual reactions serves a client well during a divorce. They may fight out of fear, feeling uncertain and stuck without the ability to make clear decisions. Or they may freeze, unable to decide at all. Then there’s flight — accepting whatever is offered, often without full

job offering decent pay rises or career advancement in a stifled market? These are real concerns that compound the financial stakes at hand.

For those receiving a lump-sum settlement, we encounter the classic issues with Duxbury calculations — which become particularly problematic

in a bear market, where the usual growth assumptions may be grossly optimistic.

We must also consider “Moving Target Syndrome” and how in current markets, this volatility makes it challenging to establish a stable point of reference for financial decisions. In the case of a high-net-worth divorce, where assets are diverse and valuations can fluctuate significantly, the syndrome can lead to a mire of uncertainty and indecision.

For the non-working spouse, who may already feel out of their depth in financial matters, this moving target presents an added layer of complexity. They are tasked with making pivotal life decisions based on variables that seem to shift with the wind.

For the working spouse, who is more likely to have their finger on the pulse of the market and its trends, timing can become a tactical advantage. They might have a firmer grasp on whether to push for a swift resolution or delay proceedings in anticipation of a more favourable economic forecast.

This syndrome can tilt the playing field, granting the more financially literate spouse the power to leverage timing to their advantage.

While the financial landscape is shaped by countless external variables, one factor remains within our control: behaviour.

Research consistently highlights that investor behaviour, rather than sheer market performance, profoundly influences investment outcomes.

This is even more compounded during the heightened emotions of divorce. A reactive client, driven by fear, might disrupt the divorce settlement process by making impulsive asset decisions.

Financial advisers play a pivotal role here, steadying the client’s course, ensuring clarity amid chaos.

However, it is often the case that only one party maintains consistent contact with the financial adviser postseparation, widening the gap in financial literacy and confidence, and potentially increasing the anxiety of the nonworking spouse.

Feeling isolated in financial matters is not uncommon for the non-working spouse, who may now be out of the loop with their former partner and uncomfortable seeking guidance from a mutual financial adviser.

This sense of isolation is further intensified in ultra high-net-worth families, where financial matters are veiled in privacy and discussions around money are almost taboo.

Conversations with friends or family may offer little solace. When the financial stakes are high, even those close may fail to grasp the importance

of securing a substantial financial resolution, leading to judgments and misconceptions. The non-working spouse’s valid concerns for financial security may be misinterpreted, and the fear of being branded a gold-digger can further compound their sense of isolation.

They carry these concerns—a combination of what they see in the media and their economic fears— silently, with few opportunities for open dialogue.

That dialogue, and the behavioural support that goes alongside it is key.

Creating space for their real concerns, sharing the insights and knowledge to help ground them and increase understanding is vital. It’s easy for their genuine concerns to be overshadowed by the vast numbers and the complexities of the financial markets and of divorce.

It’s our job to see and address these challenges head-on.

Advocating for fairness and strategic support through financial advisers and divorce coaches is not just an ideal; it’s a necessary step towards ensuring that both parties can navigate divorce equitably, and emerge from divorce with the resources, knowledge, and behaviours to manage their new financial realities.

High net worth divorces and family disputes

Our aim is to work collaboratively and strategically with legal teams to achieve the best possible outcome for clients.

We know that divorces can be messy, emotionally charged and sometimes extremely acrimonious. But we also know that with the right team in place, realisations can be maximised and even well-hidden assets recovered, so enabling your client to make a fresh start on a firm financial footing.

To find out more about how we can assist your client going through a divorce or dealing with a family disputes, please do get in touch.

Visit grantthornton.co.uk to find out more, or contact:

Hannah Davie Partner, Head of contentious estates and family disputes

T +44 (0)20 7865 2849

E hannah.davie@uk.gt.com

We help you resolve disputes through:

• Intelligence and research

• Expert witness services

• Valuations

• Asset tracing and management services

• Formal appointments

• Insolvency appointments

• Debt enforcement and recovery strategies

60-SECONDS WITH:

JENNIFER DICKSON PARTNER WITHERS

Why did you choose a career path in the legal industry?

People have always interested me. Initially I explored a media career and spent a year as a researcher with a TV production company and a Channel 4 training programme. It was a valuable introduction to the world of work, but the intellectual appeal and more solid foundations of a law career won out. Family law offers law, psychology, sociology – you have to be numerate, articulate, persuasive, a good communicator, a good negotiator. We appear at a crucial point in a client’s life and the stakes are high, whether emotionally or financially - or both. We often end up negotiating as much with our clients as the other side when cutting a deal and that can be as rewarding as it can be challenging.

What do you see as the most important thing about your job?

Working with clients to achieve the right outcomes in tricky family situations. Adult relationships are complicated, and family breakdown comes about in a variety of ways, often involving a matrix of factors. Sometimes clients won’t like what we say, but our job is to give pertinent and realistic advice while always fighting their corner.

What motivates you most about your work?

My colleagues, without doubt. As well as being one of the leading family law teams, it is an incredibly supportive and fun bunch of people, and I derive so much from working with such an impressive group – associates, trainees/paralegals, partners and support staff. One of the highlights of our calendar is our team summer picnic and sports day, which manages to be both inclusive and, in its own way, highly competitive!

What is one work related goal you would like to achieve in the next five years?

Another family lawyer and I are setting up a support network for family lawyers returning to work from maternity or shared parental leave. We have identified some excellent mentors and are drawing together a list of events – please do let me know if you you’d like to know more or be involved. What has been the best piece of advice you have been given in your career?

When I became partner, the advice I was given separately by two senior partners I admire hugely was ‘be nice’. It sounds simple, but getting on with people helps get things done, and makes it more enjoyable along the way.

What is the most significant trend in your practice today?

There is a huge push now to find ways of helping separating couples reach an agreement without needing to go to court. The courts are in crisis and often not fit for purpose. It makes sense therefore to devise, promote and encourage other ways of resolving disputes. Mediation, arbitration, collaborative law, and private FDRs have been around for several years, and we now have new kids on the block including one-couple-one-lawyer approaches, such as the Withers’ Uncouple model which led the way. Who has been your biggest role model in the industry?

Having been at Withers for almost my whole career, I have been lucky to work with a number of the best family lawyers and see them in action. One of the benefits of working in a big team is being able to learn from different styles and approaches to similar issues.

What is one important skill that you think everyone should have?

The ability to have an Inner Critic and an Inner Coach. We can all benefit from talking to ourselves like a critical

friend, or a motivating role model, in the right place and at the right time. What cause are you passionate about?

Trying to protect children from the impact of conflict between their separating or separated parents and helping to make co-parenting work for everyone involved. The Family Solutions Group has done some excellent work on this with its report ‘What About Henry?’ and it is also very much on the agenda of the President of the Family Division, Sir Andrew McFarlane.

Where has been your favorite holiday destination and why?

The place which gives my family the most holiday fun is the Fife coast in Scotland – beach, golf, cycling, tennis, walking, fish and chips. But if I could be transported back to any place, it would be to a place we stayed in Tulum, Mexico. As students, my (now) husband and I booked two nights in the cheapest hostel, surviving the first night in a hammock in a stifling, dingy, windowless, airless, cockroach ridden shoebox, before abandoning that to splash out on a small hotel right on the beach with an idyllic view, a bed….. and a fan! We appreciated every penny of that extra cost more than anywhere we have stayed since.

Dead or alive, which famous person would you most like to have dinner with, and why?

I am a big fan of Michelle Obama – what a life she has had. She is inspiring, interesting and iconic: an incredible role model. She would have many stories to tell, from her childhood to life in the White House and beyond, her setbacks, experiences of discrimination, resilience and coping with adversity and living as a family in the world’s spotlight.

WHAT’S OURS IS MINE

WHAT’S MINE IS MINE

Authored by: Charlotte Newman (Partner) – Stowe Family Law

As family lawyers, one of the first topics discussed with clients is the ‘marital pot’. What is the extent of it and how will it be distributed on divorce? In most cases, particularly where there has been a long marriage, the likelihood is that all assets in the case will be deemed to be matrimonial in nature. In such cases, there is no need to focus on the source of the asset or when it was accrued as it will be readily accepted that they have been generated by marital endeavour. This is the case even if one party was the ‘wealth creator’ with the other taking a more traditional role of ‘homemaker’ and caring for children. Where there are assets surplus to need, marital assets

will be shared. In smaller money cases, need may dictate a departure from equality. However, what about those cases where there are non-matrimonial assets at play? How should they be treated and do the same principles apply? Let’s explore..

When is an asset nonmatrimonial?

Assets will be considered nonmatrimonial where they are acquired by one spouse either before the marriage, or after the relationship has ended. Assets that have come from a source outside the marriage, such as inheritance or gifted assets are also by their nature non-matrimonial. The distinction is that assets which emanate from the marriage during its subsistence will be classed as matrimonial.

Lord Nichols made the first distinction in the case of White v White:

“…… property owned by one spouse before the marriage, and inherited property whenever

acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage, these two classes of property should not necessarily be treated in the same way.”

Can an asset’s nature change?

In short, yes. There are times where the significance of the origin of the asset will diminish overtime or completely.

The case of K v L [2011] EWCA Civ 550 is useful in setting out the situations where this may happen. In short (but not limited to):

1 Where assets over time have been ‘mingled’ or ‘mixed’ with matrimonial property, such that the initial contributor may be said to have accepted that it should now be treated as matrimonial in nature. In such circumstances it can also be too difficult to identify the current value of the nonmatrimonial element.

2 More commonly, where a spouse has contributed to the purchase of the matrimonial home. Even where the same is owned solely by them, it would have over time been treated as marital property –supported by its very definition.

Why is it important to distinguish?

When the court is tasked with determining a financial remedy claim, section 25 of The Matrimonial Causes Act 1973 is applied. In its application, matrimonial and non-matrimonial assets can be treated differently. Whilst this may not be true of every case, it is important for practitioners to understand the origin of an asset. Whilst matrimonial assets are subject to the sharing principle which results in property being divided equally between the parties, non-matrimonial property is not (Hart v Hart [2017] EWCA Civ 1306). There are occasions, therefore, where it will be ‘ring fenced’ for the purposes of the negotiations/settlement determination.

There is no exact science to the approach adopted to non-matrimonial property and it will vary on the facts of an individual case. The extent of the asset base will be a large factor in determining how much weight can be applied to the source of an asset. If there is sufficient marital property to allow needs to be met, it is more likely that the non-matrimonial asset will be ring-fenced. By contrast, if there is not, the court can encroach upon the nonmatrimonial asset to meet the needs of the other party. It is in the assessment

of need and the arguments around what is reasonable, that a lawyer can add value to specific case.

The recent case of WX v HX [2021] serves as a reminder of the importance of establishing the different types of property on divorce.

Whilst I do not rehearse the full background details of the case here, the salient arguments by the parties were:

1 The wife argued that the husband’s assets which had been brought to the marriage had been mingled with matrimonial monies. The value of his assets, which were put into trusts during the marriage, had been applied for the benefit of the family. The merging of the assets into matrimonial wealth, meant they would be shared equally.

2 The wife’s wealth that she brought to the marriage, had been kept separate. The capital had not been mixed with family resources. On that basis they were ring-fenced. The husband raised an argument that the wife was “asking for half of everything generated during the marriage without any acknowledgement or recognition that she was a wealthy woman in her own right”. Further he argued that his contributions in managing the wife’s funds, had resulted in a substantial increase in value. Whilst the wife accepted that he had managed investments, it was not clear whether that management had added value beyond normal market growth.

The wife was entitled to keep the entire fund to the exclusion of the husband. The wealth that the husband had brought to the marriage was now matrimonial, and shared.

What can be done?

We now live in a society where marriages are taking place later on in life, after careers and financial positions have been established. The current state of the economy and property market has resulted in a sky-rocketing of familial financial support to help their children get onto the property ladder. Consequently, couples are likely to enter a relationship with assets that have already been accrued and/or gifted. I previously authored an article on the rise of Pre-Nuptial Agreements and the content is relevant here.

It is unlikely that non-matrimonial assets which have not been mingled will be shared on divorce in the absence of need. However, if those needs are not met from an equal division of matrimonial assets, the nonmatrimonial assets may well be divided in the settlement. Afterall, needs tump contribution arguments!

Pre-nuptial & Post Nuptial Agreements can protect these assets on divorce. Where certain conditions are met in terms of the drafting and timing of a PNA, they are likely to be upheld or carry significant weight. Both types of agreement can provide protection for the spouse seeking to ring-fence nonmatrimonial assets.

The First Annual Practitioner’s Forum on Trusts in Divorce

15th February 2024 | Central London

The only event to bring together Trust and Family Lawyers to address the intricate issues arising from trusts in divorce.

60-SECONDS WITH:

EMILY VENN ASSOCIATE HARBOTTLE & LEWIS

Why did you choose a career path in the legal industry?

I wanted a career which would be both fundamentally ‘human’ and intellectually rigorous, which is why helping people through the legal process of separation appealed to me. I find language fascinating (having studied Modern Languages at university) so it was also a way for me to work with language in general –communication being absolutely key in family law.

What do you see as the most important thing about your job?

Having emotional intelligence. Guiding a client through one of the most difficult life experiences they are likely to go through is an essential part of the job, so it is really important to me that clients feel listened to and that they have the right support network in place throughout the process.

What motivates you most about your work?

No two cases are identical, so I love being able to learn something new every day. As part of that, working alongside an inspiring team of lawyers to find ways of resolving cases – and reaching that moment where all issues are agreed and clients can move forward with their lives – is highly motivating and a huge privilege.

What is one work related goal you would like to achieve in the next five years?

I was once a very dedicated classical musician, and at one point even contemplated making a career of it (though I’m not sure that was ever a totally realistic aspiration…) – and whilst I would never wish for anyone to be in the position of needing a family lawyer, I think it would be really

interesting to act in a case with links to the classical music industry at some stage.

What has been the best piece of advice you have been given in your career so far?

Keep it concise: I was once told that if something can’t be said in a letter of no more than two pages, really have a think about whether it needs to be said at all.

What is the most significant trend in your practice today?

I think ADR is really taking hold now. The private FDR is really well established in HNW matters, and I have seen very creative (and effective) use of the arbitration system to allow parties to resolve issues in a way that is tailor-made to suit their needs and objectives.

Who has been your biggest role model in the industry?

Ruth Bader Ginsburg. I’m not sure this needs any explanation!

What is one important skill that you think everyone should have?

I think we should all celebrate the different skills that each individual brings to the table, so if I had to pick one it would have to be teamwork: there wouldn’t be very much point in everyone having different strengths if we couldn’t find ways of working together to combine those skills effectively and for good use.

What cause are you passionate about?

I have recently started taking part in and volunteering at my local Parkrun,

and think that everything they do and stand for in terms of community, inclusivity, mental health, access to outdoor exercise and the work they do to support their charity partners is fantastic. I am a huge fan!

Where has been your favorite holiday destination and why?

Australia – it is amazingly diverse. I was lucky enough to go there one summer and spent time in the rainforest, exploring gold mines near Melbourne, and skiing in the ‘Australian Alps’. It was unforgettable.

Dead or alive, which famous person would you most like to have dinner with, and why?

Hands down, David Attenborough. I think the work he does is incredible and he must have so many experiences to share. He also seems like a very interesting, down to earth, infectiously enthusiastic and kind person.

As the winner of our HNW Divorce Future Thought Leaders Essay Competition, what are you most looking forward to as an attendee and speaker at the HNW Divorce Litigation – 3rd Annual Conference?

I am really excited – and very grateful – to have the opportunity to take part in the conference alongside such acclaimed speakers and to be able to bring a junior lawyer’s perspective to the table. I am also really looking forward to meeting new people in the industry and hearing from all the panellists!

1 OUR STORY

ThoughtLeaders4 are serious about providing opportunities to up-and-coming practitioners specialising in HNW Divorce. We strongly believe that the next generation of practitioners should be writing, speaking at and attending events in order to build their network and further their careers.

With this in mind, we are proud to present the HNW Divorce NextGen Future Thought Leaders Essay Competition. Assessed by an illustriously experienced, senior and broad-ranging panel of practitioners this was their chance to stick their head above the parapet and mark themselves as the one-to-watch. With the opportunity to attend and speak at our HNW Divorce Litigation Flagship Conference, we were delighted to welcome so many submissions and we hope you enjoy reading their entries.

Please note the order of the essays in this publication after the top 3, are not reflective of their marking in the competition and the essays were listed randomly.

2

THE BRIEF

What reform – if any – would you make to our law on matrimonial finance?

THE BRIEF

What reform – if any – would you make to our law on matrimonial finance?

In the run-up to our HNW Divorce conference on 23rd November 2023 in London, we invited submissions from next gen practitioners on this topical debate. We encouraged them to draw on their own experiences and jurisdictions and offer a well-supported argument either for or against reform. They may choose to focus on section 25 of the Matrimonial Causes Act, they may discuss whether legislation should be expanded to incorporate financial provision for non-marital relationships, or they may look at the wider political and economic context of reform. We invited them to be creative, well-researched, opinionated, and take a position on this timely issue, affecting the next generation of divorce practitioners.

JUDGING PANEL

EMMA HATLEY PARTNER STEWARTS

EMMA HATLEY PARTNER STEWARTS

Emma advises on complex and often high profile matters for high net worth individuals, their families and partners. Her cases typically involve an international dimension and she often works in coordination with other cross-border trusted advisers, particularly in offshore jurisdictions and America.

DEEPAK NAGPAL KC

ALEX CARRUTHERS

PARTNER

ALEX CARRUTHERS PARTNER

DEEPAK NAGPAL KC

BARRISTER

1KBW

BARRISTER

1KBW

DEEPAK NAGPAL KC BARRISTER 1KBW

Deepak is one of the leading matrimonial finance barristers in the country. Deepak has appeared at all levels in matrimonial finance proceedings, including in the House of Lords and in the Supreme Court. He has acted in some of the biggest and most complicated divorce cases in London.

HUGHES FOWLER CARRUTHERS

ALEX CARRUTHERS PARTNER

HUGHES FOWLER CARRUTHERS

Alex is a founding partner at Hughes Fowler Carruthers. He specialises in complex divorce and financial work and children’s work, in particular in international cases. His clients are high net worth individuals with complex legal issues including trusts and jurisdictional disputes.

HUGHES FOWLER CARRUTHERS

CHARLOTTE BRADLEY

PARTNER

CHARLOTTE BRADLEY

PARTNER

KINGSLEY NAPLEY

CHARLOTTE BRADLEY PARTNER

KINGSLEY NAPLEY

CHARLOTTE BRADLEY PARTNER KINGSLEY NAPLEY

Charlotte has been head of the Family team at Kingsley Napley since 2013. She specialises in all aspects of family law, particularly international issues, both in relation to finance and children. Charlotte has a reputation for cross border jurisdiction issues, particularly European and Relocation cases, and for acting for unmarried parents in Schedule 1 (financial provision) cases.

JAMES PIRRIE DIRECTOR

FAMILY LAW IN PARTNERSHIP

FAMILY LAW IN PARTNERSHIP

JAMES PIRRIE DIRECTOR FAMILY LAW IN PARTNERSHIP

JAMES PIRRIE DIRECTOR FAMILY LAW

James specialises in complex financial issues and non-adversarial and costeffective approaches to divorce and separation including mediation, arbitration and collaborative law. He helps clients take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward.

PARTNERSHIP

HOW DO YOU SOLVE A PROBLEM LIKE THE MATRIMONIAL CAUSES ACT?

Authored by: Emily Venn (Associate) – Harbottle & Lewis

The Law Commission’s announcement of its review of our law on matrimonial finance1 has been widely reported, with commentators speculating as to the reforms that it may lead to and many of them welcoming a potential reform. Baroness Deech has long campaigned for an overhaul of our laws, and introduced a Bill into the House of Lords which espouses a strict classification and equal division of matrimonial property and a five-year limit on the duration of spousal maintenance payments (unless the receiving party would suffer serious financial hardship were it to cease after five years).2

Whilst many practitioners might consider this to be too strict an approach, few would dispute that, now fifty years old, the Matrimonial Causes Act 1973 (“MCA 1973”) might well benefit from some form of surgical intervention – particularly in light of the fact that the portrait of a ‘family’ in 2023 is now scarcely recognisable to its 1973 counterpart. This has, naturally, created ample debate between family law practitioners as to how the Government should best approach reform, which ultimately can be distilled down to the question of whether the change required is merely cosmetic, or rather more invasive.

The problem

The issue faced by any potential reform is simple: the policy aspirations of achieving both flexibility and certainty within the legal framework of the MCA 1973 are at odds against one another. The current way in which judges decide on the outcomes of financial remedy proceedings is against a list of statutory factors (“the section 25 factors”).3

1 Law Commission, ‘Review to examine 50-year-old laws on finances after divorce and the ending of a civil partnership’ (The Law Commission, 4 April 2023) <https://www.lawcom. gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/> accessed 5 September 2023 2 Divorce (Financial Provision) HL Bill (2021-22) 45 3 Matrimonial Causes Act 1973, s 25(2)(a)-(h)

The criteria therein are broad (requiring judges to consider “all the circumstances of the case”4), but necessarily so, to provide enough flexibility for the discretion afforded to judges properly to operate. It is this “principled flexibility”5 which has enabled the law to keep up with social change and which has given the MCA 1973 its longevity; after all, it cannot be said that the law has not ‘kept up’.

Since 1973, family law has undergone considerable change through the operation of case law. It has recognised the equal contribution of both spouses,6 given decisive weight to prenuptial agreements,7 and even codified a requirement for the court to consider the possibility of a clean break8 which has led to a decided shift away from joint lives maintenance awards.

4 Matrimonial Causes Act 1973, s 25(1)

In a practice area which has families and their financial arrangements – no two of which are identical – at its heart, any legal framework therein which serves to untangle those arrangements must be capable of application to any number of unique scenarios over an undetermined period of time, to allow the creation of bespoke solutions to any issue which may arise. Arguably, the section 25 factors in their current form – and, more broadly, the guiding principles of dividing assets by reference to ‘needs’, ‘sharing’ and ‘compensation’9 – achieve that purpose. None of the individual criteria is outdated. The way in which Government functions means that we do not have the luxury of being able swiftly to update the statute each time the law becomes obsolete, or a new recommendation is made.

The shifting nature of human relationships is largely dictated by social norms, which are in a constant state of flux.

If our law on matrimonial finance were reformed into a strict, formulaic, one-size-fits-all toolkit for family law practitioners, whilst this would have clear benefits on the one hand – including certainty, increased confidence in the quality of judging, reduced costs as a result of reduced scope for conflict, greater simplicity when it comes to advising clients on potential outcomes – there will undoubtedly be cases where the formula would result in an unfair outcome.

For example, were the Divorce (Financial Provision) Bill10 to be implemented, and the court were faced with a scenario where the separating parties were in their late forties/early fifties, did not enter into any form of nuptial agreement, and the wealth was dynastic in nature, had originated long prior to the marriage and had not been increased by their joint endeavours (but had provided them with an opulent standard of living). The party exiting that dynastic structure would, at face

value, only receive five years’ spousal maintenance to take them into their midfifties, unless serious financial hardship could be proven. A similar outcome could be reached in the case of an ex-professional sportsperson whose wealth had been built up prior to the relationship, and where the parties had lived beyond their means throughout the marriage and heavily depleted their capital, leaving nothing available for sharing. The Bill is similar to the law applied in Scotland,11 which highly favours the financially stronger party –clearly, this conflicts with the values of a society, such as our own, which works so hard to promote equality and prevent discrimination.

In spite of this, in the writer’s experience, it is becoming increasingly difficult to advise clients as to a clear bracket in which their case is likely to be adjudicated, because cases where the possible outcome falls outside that bracket are becoming the norm, rather than the exception. This applies equally to high and non-high net worth individuals alike. No two judges, when faced with the same couple and set of facts, will arrive at the same outcome – particularly when dealing with the calculation of a party’s needs. This begs the question of whether judicial discretion is too wide, and that the real problem is that that it is the inconsistent application of the law by the Family Court. This is not helped by needs being an elastic concept12 and the fact that the main guiding principles (beyond the section 25 factors) are not enshrined by statute, and instead scattered through fifty years’ worth of

5 Lord Justice Peter Jackson, ‘Is Family Law law?’ (The Nicholas Wall Memorial Lecture, 11 May 2023) <https://www.judiciary.uk/the-nicholas-wall-memorial-lecture-given-by-lordjustice-peter-jackson-is-family-law-law/> accessed 14 September 2023

6 White v White [2000] UKHL 54, [2001] 1 AC 596

7 Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534

8 Matrimonial Causes Act 1973, s 25A, as amended by Matrimonial and Family Proceedings Act 1984, s 3

9 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618

10 Divorce (Financial Provision) HL Bill (2021-22) 45

11 Family Law (Scotland) Act 1985, s 9

12 WC v HC [2022] EWFC 22 [21(xii)] (Peel J)

family law judgments – albeit helpfully summarised relatively recently by Mr Justice Peel.13 However, the majority of reported cases – from where these principles are derived – involve levels of wealth that do not reflect the vast majority of families. There is therefore a lack of clear guidance on resolving cases involving modest wealth, creating even greater variation as to how such cases are determined.

Law students are taught at the outset of their training that the law “must be accessible and so far as possible intelligible, clear and predictable”14 and, when compared against the overall case law principles which must be applied by the Family Court, our statute does not achieve that aim.

legal costs (which not all litigants can readily afford), increase accessibility of the law to those who choose to litigate in person, and combat the rising trend in “apocalyptic”15, “bitterly fought adversarial”16 and “nihilistic”17 litigation. However, and as pointed out above, any solution must not lose sight of the fact that the law on matrimonial finance applies to all separating couples, rather than exclusively to the wealthy.

The solution

It follows from the above that we need a solution which creates greater certainty (whilst retaining the key characteristic of flexibility), helping separating couples to reach financial agreements between themselves or with the assistance of alternate dispute resolution forums much earlier on, with greater confidence that the solution they have reached is within the bracket of what a court would order. In turn, this will reduce

13 WC v HC [2022] EWFC 22 [21]-[22] (Peel J)

It therefore seems only right that where in “the vast majority of cases the enquiry will begin and end with the parties’ needs”18, any solution which is guided by those needs must invariably involve judicial discretion, taking the standard of living of the parties during the marriage as its benchmark, though not necessarily the sole factor for consideration given that each case is highly fact-specific.19 This has been endorsed by the Family Justice Council in its Guidance on Financial Needs on Divorce.20 The law on matrimonial finance must therefore remain focused on the overall aim of achieving fairness between separating spouses so that the individual circumstances of cases can be taken into account as required.

Therefore, the writer does not agree that a complete reform of our law on matrimonial finance would be an elegant solution. The implementation of the Law Commission’s draft Nuptial Agreements Bill21 (such that the statute would reflect the Supreme Court decision in Radmacher v Granatino22) in relation to the proposed qualifying nuptial agreements would be a positive and long-overdue change, giving parties to such agreements the certainty of them being afforded due weight, but this does not alter the need for the law to retain its flexibility for the reasons given above. Even the operation of this draft Bill depends to an extent upon a determination of the receiving party’s needs so as to ensure they are met by the terms of the agreement23 (the overall effect of the draft Bill being that financially stronger spouses cannot contract themselves out of their obligation to meet the needs of their spouse via a qualifying nuptial agreement). The flexibility necessary to determine those needs can only be achieved through judicial discretion.

However, that is not to say that greater direction should not be given to the Family Court as to the overall principles to be applied to a given issue in a case in order to prevent fettering of that discretion.

Rather than imposing a strict formula for the purpose of generating a narrower range of outcomes, or reforming any one of the particular areas into which the Law Commission will be conducting its review,24 what is instead needed is a comprehensive set of statutory guidance, taken from case law as it has evolved over time and continues to do so, to be read alongside the MCA 1973 to provide a clear list of principles underpinning the law and factors to which judges should be required to

14 Lord Bingham of Cornhill, ’The Rule of Law’ (The Sixth Sir David Williams Lecture, 16 November 2006) <https://www.cpl.law.cam.ac.uk/sites/www.law.cam.ac.uk/files/images/www. cpl.law.cam.ac.uk/legacy/Media/THE%20RULE%20OF%20LAW%202006.pdf> accessed 11 September 2023

15 Xanthopoulos v Rakshina [2022] EWFC 30 [12] (Mostyn J)

16 Crowther v Crowther & Ors [2021] EWFC 88 [9] (Peel J)

17 Crowther v Crowther & Ors [2021] EWFC 88 [87] (Peel J)

18 WC v HC [2022] EWFC 22 [21(ix)] (Peel J)

19 WC v HC [2022] EWFC 22 [21(xv)] (Peel J)

20 Family Justice Council, Guidance on “Financial Needs” on Divorce (June 2016) para 26

21 Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) app A

22 Radmacher v Granatino [2010] UKSC 42, [2011] 1 AC 534

23 Law Commission, Matrimonial Property, Needs and Agreements (Law Com No 343, 2014) app A s 5(4)(b)(2B); sch A1 para 1(2)-(3)

24 Law Commission, ‘Review to examine 50-year-old laws on finances after divorce and the ending of a civil partnership’ (The Law Commission, 4 April 2023) <https://www.lawcom. gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/> accessed 5 September 2023

have regard – with the discretionary element restricted to the weight to be attached to those factors. This will provide greater certainty to judges when considering the outcome of a case, to lawyers when advising their clients on settlement parameters and on the likely determination of a particular issue (such as conduct or special contribution which, when pleaded, often result in highly-charged litigation), and to separating spouses faced with the decision of how to conduct their financial disengagement.

This guidance already exists: it is regularly updated through case law, and periodically summarised therein,25 including in relation to individual elements of the section 25 factors, such as conduct.26 Updating the guidance will be quicker and easier to effect and will retain, but limit the potential scope of, judicial discretion – albeit not drastically so – by creating a little more

precision without imposing “constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome”.27

Judges often comment at the end of a trial that their decision may not be palatable to either party, but that they have been guided by the overriding principle of fairness in arriving at that decision. This principle must not be overlooked by any proposed reform.

25 Eg: WC v HC [2022] EWFC 22 [21]-[22] (Peel J)

26 Matrimonial Causes Act 1973, s 25(2)(g) ; Khayrova v Tsvetkov [2023] EWFC 130 [40]-[47] (Peel J)

27 Hart v Hart [2017] EWCA 1306 Civ [93] (Moylan LJ)

TACKLING

THE TROJAN

HORSE OF INEQUALITY IN MATRIMONIAL FINANCE PROCEEDINGS – CONDUCT AND CONTRIBUTION

Authored by: Neeva Desai (Trainee Solicitor) – Charles Russell Speechlys

Much has been said on financial remedy reform - the usual suspects i.e., enforceability of pre-nuptial agreements, cohabitation reform and the eternal tension between consistency versus discretion, are all key areas that are ripe for reform. This essay aims to focus on the less-explored aspects of matrimonial finance reform. I endeavour to make a case to reform the treatment of (i) ‘personal conduct’ and (ii) post separation contributions/accrual in matrimonial finance proceedings.

As recognised in Miller/ McFarlane, ‘conduct’ and ‘contributions’ are opposite sides of the same coin, in that, both call for retrospective analysis of the parties’ behaviour during the marriage, and

should thus, in principle be treated in a similar manner.1

Both areas, conduct and contribution, are ripe for reform due to a lack of consistency in case law as well as discriminatory outcomes that remain unaddressed.

Post separation contributions/accruals

a) Consistency, where art thou?

Post separation assets are considered to be non-matrimonial assets on the basis that these have “little to do with the endeavour of the partnership and the equal sharing principle…just cannot apply to it on any moral or fair

1 [2006] UKHL 24.

2 JL v SL (No 2) (Appeal: Non-Matrimonial Property) [2015] 2 FLR 1202.

3 [2015] 1 FLR 745.

2

basis”.2 In Cooper-Hohn v Hohn, a key consideration was whether the new work and investments created by one party in the period following the parties’ separation falls to be considered in the character of matrimonial property.3

The current approach in dealing with post separation assets is problematic due to the existence of contradictory ‘formulaic’ as well as ‘broad-brush’ approaches. The formulaic approach, as per Rossi v Rossi, espouses rather arbitrarily that, post-separation bonuses should not be considered nonmatrimonial “unless [these] have related

to a period which commenced at least 12 months after the separation”.4 This dicta received mixed judicial treatment, recognised as ‘arbitrary’ by Charles J in H v H5 but approved in Jones v Jones6 and the Hong Kong case of Kan v Poon.7 More recently in C v C (PostSeparation Accrual), Roberts J critiqued that as far as the date of receipt of funds is concerned, the proximity to the effective end of the marriage does not have any determinative effect per se, on a decision as to whether property received post-separation is matrimonial or not.8 Unhindered, recently in E v L (Financial Remedies), Mostyn J stuck by his own ‘yardstick’ as originally expounded in Rossi.9

This year, in CG v DL, Sir Jonathan Cohen decided that post separation income acquired in the first five months after separation was matrimonial.10 However in relation to income received 17 months after separation Sir Jonathan segregated 50% as matrimonial and the remaining 50% as non-matrimonial without providing any principled basis for such a demarcation. Therefore, in the face of inconsistent approaches (whether formulaic or broad-brush), the treatment of post separation assets remains unpredictable.

b) ‘Heads I win, tails you lose’11

The current judicial treatment of post separation accruals also raises issues of substantive inequality in two ways.

First, it has been argued that where a breadwinner gambles with his spouse’s notional share of the family assets, well aware of the fact that it is very possible that he shares disproportionately in the fruits of his endeavours, the law should expect him to shoulder a greater share of the risk in case he loses money/ assets.12 Unfortunately, this is not the case. Under the current law, a party who seeks to restore the value of assets that have been traded and lost has the burden of demonstrating that a Norris add-back would be appropriate, which is a high burden to discharge.13 Christopher Wagstaffe KC has argued that, therefore the businessman emerging from a failed marriage finds himself in a better position than his homemaking counterpart. If his trades yield profits, he is likely to have a higher share of the post separation accrual than his former spouse, and where he makes poor trades, he has the comfort of knowing that his spouse has weak prospects of persuading a court that she should be protected against his poor trading abilities, despite the fact that he has used her notional share of matrimonial assets.

The homemaker thus shoulders half the risk, but does not benefit equally, resulting in an unjust ‘heads I win, tails you lose’ type of situation.

Second, Nicholas Allen KC has submitted that “post-separation but pre-determination financial contribution is considered differently to postseparation and post-determination non-financial contribution”.14 Despite the fact that both are made after the marital partnership has come to an end, the former is potentially relevant, whereas the latter is not. This double standard is best revealed in A v M, where Mostyn dismisses the argument that the wife should be entitled to a share in carry generated by the husband after the date of trial by virtue of her ‘contributions to the family’ in caring for the parties’ minor daughter.15 Mostyn J explicitly states that the ‘concept of the sharing of acquest is predicated on the parties being in an economic partnership’. While this is an accurate explication of the law, it is at least arguable that his approach gives rise to a double standard which Nicholas Allen KC compares to the “Orwellian oxymoron that all contributions are equal, but some are more equal than others”.16

Therefore, the treatment of post separation assets is inconsistent, unprincipled and at worst, discriminatory. It is therefore ripe for reform. A solution would require the (often male) breadwinner’s decision to trade with the

4 [2006] EWHC 1482 (Fam).

5 [2007] 2 FLR 548.

6 [2011] 1 FLR 1723

7 (2014) 17 HKCFAR 414.

8 [2019] 1 FLR 939.

9 [2022] 1 FLR 952.

10 2023] EWFC 82 (Fam).

11 Christopher Wagstaffe KC, ‘Heads I win, tails you lose: add-backs and post-separation accruals in financial remedy proceedings’ [2015] Fam Law 662.

12 ibid.

13 Norris v Norris [2002] EWHC 2996 (Fam).

14 Nicholas Allen KC, ‘Post-Separation Accrual in CG v DL – Are We Back to an Arbitrary Approach?’ [2023] Financial Remedies Journal.

15 [2021] EWFC 89.

16 See n.14.

(often female) homemaker’s notional share of the family capital to be cut both ways. If as a result of his business acumen, he gains, this may justify a larger share of the spoils, however equality would require that if he loses, he ought to bear a correspondingly larger share of the loss.

Conduct (personal)

i) To blame, or not to blame - that is the question

The rationale underlying the longawaited ‘no fault’ divorce regime was the expulsion of ‘blame’ from the realm of divorce proceedings. The idea that parties can leave a marriage without a net gain or loss in their moral worth, without “rummaging through the attic of marriage” as famously stated by Coleridge in G v G (Financial Provision: Equal Division) is celebrated for its progressiveness.17 Notwithstanding the merits of ‘no fault’ divorce, it is argued the role of conduct in matrimonial finance proceedings, beyond financial conduct and litigation misconduct may deeply influence and impact the course of a case and vulnerable parties.

It is therefore unsurprising that the Law Commission’s wholesale review of financial remedies included ‘what consideration the courts should give to the behaviour of separating parties when making financial remedy orders’. It is contended that distinct from conduct that is financial or litigation

misconduct, there ought to be a clear test or consistent judicial approach to acknowledge and redress poor personal conduct that does not have to achieve the gold standard of reprehensible behaviour such as attempted murder on a spouse.18

Currently, the court is required to consider the parties’ conduct as one factor in the exercise of discretion, but only if it would “in the opinion of the court be inequitable to disregard it”.19 This high hurdle is further elevated by the practical reality that ‘conduct’ cases are reputed to be “rare”.20 Despite being a fledgeling lawyer, I have encountered several cases where one party (usually the abuser in the relationship) has engaged in full-blown ‘lawfare’ involving a lethal combination of non-engagement with the legal process while dissipating funds and resources across a web of untransparent transactions. This is indeed a weapon of last resort, often deployed by the abuser at the end of a turbulent relationship.

In OG v AG (Financial Remedies: Conduct), Mostyn J echoed Miller/ McFarlane that it is “unprincipled for the court to stick a finger in the air and arbitrarily to fine a party for what it regards as immoral conduct”.21 However, it is argued, that an attempt to avoid judicial paternalism should not result in the passive acceptance of poor personal conduct which impacts the financial and practical realities of vulnerable parties. As Simon Bruce has elucidated, the ‘obvious and gross test’ as espoused in Wachtel v Wachtel is now 40-years old, and the underlying legislation is 50-years old.22 Furthermore, thresholds like the ‘gasp factor’ and the ‘gulp factor’ result in highly subjective decisions.23 Secondly, in various cases the homemaking party (often the wife) is impacted by nonfinancial harms. Holly Symonds has raised, that in principle, it is unclear why personal misconduct needs to be so bad to be acknowledged when financial misconduct or litigation misconduct is readily addressed by the court.24 For example, in a recent case I was working on, a homemaker wife, had been pressured into giving up work, spending all her time in domestic work,

isolated from the family finances and then abandoned by her husband (who was absconding from large amounts of debt) after a 30-year marriage. Symonds questions whether in such cases, the wife could be paid back for all the unpaid domestic and caring responsibilities she took on. Indeed, it is one of the UN Department of Economic and Social Affairs’ five targets on General Equality to acknowledge and value unpaid domestic work.25

The ‘obvious and gross’ test is illequipped to tackle abusive personal misconduct because abuse is often subtle and patterned rather than obvious or gross. While it is accepted that it is difficult to quantify the impact of personal conduct, this is an unsatisfactory argument against reform, and formulation of a clearer test, that ideally, does not involve onomatopoeic thresholds such as ‘gasp’ and ‘gulp’ is the first step to achieving consistency across cases.

A reform solution does not have to entail cost consequences, as these are often detrimental to the victim herself due to a reduction in the value of the overall pot. For instance, it would have been miraculously helpful to the abovementioned homemaker’s case, if enforcement applications could be simplified or expedited, such that an erring party, waging ‘lawfare’ (in this case, a heady cocktail of nonengagement, non-payment and nondisclosure) faced the consequences of both, his actions and omissions, before it was too late (as it was for the client who lost her only home after a 30year marriage before her enforcement application was even listed).

17 [2002] EWHC Fam 1339.

18 H v H (financial relief: attempted murder as conduct) [2005] EWHC 2911.

19 S25(2)(g) Matrimonial Causes Act 1973.

20 Charlotte Posnansky, ‘Behaviour and blame – what impact on a marriage?’ Today’s Family Lawyer, 17 July 2023 <Behaviour and blame – what impact on a marriage? - Today’s Family Lawyer (todaysfamilylawyer.co.uk)> accessed on 9 September 2023.

21 [2020] EWFC 52.

22 [1973] Fam 72; Simon Bruce, ‘The Thought Leader: behaviour in divorce’ [2022] Fam Law 1439.

23 S v S (Non-Matrimonial property: conduct) [2006] EWHC 2793 (Fam).

24 Holly Symonds, ‘Domestic abuse in financial remedy proceedings: not just conduct’ [2023] Fam Law 708.

25 ibid.

‘CONTRIBUTIONS’

AND ‘COMPENSATION’: THE HUMAN APPENDIX 3

Family law practitioners are acutely aware of the importance and emotional significance of language. Recognising and being mindful of how the words we use can ‘trigger’ people might be seen by some as ‘woke-ism’ but, in our profession, we observe the impact of words first-hand.

Two of the most inflammatory and emotive words in the family law lexicon are ‘contributions’ and ‘compensation’. Using these terms is, however, unavoidable when advising clients about how the law of England and Wales will apply to the financial claims arising on the breakdown of their marriage or civil partnership. 1

Many spouses believe that their ‘contribution’ was greater than that of their partner, or that they deserve ‘compensation’ for what they have endured.

Having to explain that their respective ‘contributions’ are (almost always) valued equally when dividing the marital assets, and that ‘compensation’ does not apply to their circumstances, invariably leads to disappointment. Why use these emotive terms when they rarely ever have an impact on outcome? The breakdown of a relationship is difficult and stressful. It is typically a period of uncertainty, and the legal process can be confusing for parties. Countless clients are bemused to be told that five different judges can arrive at five different outcomes, and all of those could be right or ‘within

the bracket’. They deserve a clear framework within which to reach an agreement that will enable them to move on with their lives.

The Bill put forward by Baroness Deech1 has the potential to make positive change and remove some of the uncertainty from our discretionary corner of the law. If there is to be reform of the law relating to financial remedies, an important starting point would be to remove terms like ‘contributions’ and ‘compensation’, which often do more harm than good.

Divorce (Financial Provision) Bill [HL] (HL Bill 39)

Authored by: David Carver (Senior Associate) - Charles Russell Speechlys

Contributions

Section 25(2)(f) of the Matrimonial Causes Act 1973 contains one of the least helpful parts of the statute. It provides that, when deciding how to exercise its powers, the Court shall have regard to: “the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family”.

Notwithstanding the statutory requirement to consider the parties’ respective ‘contributions’, judges are loath (and do not have time) to pick through the history of the marriage and conduct a detailed assessment of their ‘contributions’. Rather, judges generally look only at financial contributions in the form of pre-acquired or inherited wealth. Judges are particularly loath to consider ‘negative contributions’ (or a lesser contribution), which is effectively ‘conduct’ via the backdoor2. In WC v HC [2022]3, Peel J was particularly critical of the wife for seeking to introduce prejudicial material into her evidence in the (misplaced) hope that painting an unfavourable picture of the husband would assist her case. Part of the problem is that the statute, on its face, suggests to the parties that actions (or inaction) during the marriage will affect the outcome.

In practice, save for in the rarely pleaded cases of ‘special contribution’, the Court adopts the approach set out by the House of Lords in White v White [2000]4, dividing the marital

2 Per Moylan LJ, Finch v Baker [2021] EWCA Civ 27, [37-39]

3 [2022] EWFC 22

4 [2000] UKHL 54

5 A v M [2021] EWFC 89

6 [2000] UKHL 54

7 [2006] UKHL 24

assets equally. In that seminal case, the parties’ ‘contributions’, financial and non-financial, were considered in detail and concluded to be alike.

Although the statute provides that contributions to the “welfare of the family” are to be considered, including contributions likely to be made in the foreseeable future, this does not really mean that continued contributions to the care of any children of the family are treated the same as financial contributions after the end of the ‘economic partnership’ of the marriage. For example, although the primary carer continues to raise the children and the ‘breadwinner’ continues to work, the primary carer typically receives a tapering share in assets that arise during the marriage, but which vest after it. Argument to the contrary has been emphatically rejected by Mostyn J5 , despite it being explicitly stated in White v White6 that “in seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles”.

Ending the pretence that ‘contributions’ affect the outcome would be less confusing for parties. The division of assets should be referrable to their ‘marital’ or ‘non-marital’ character, subject to any adjustment for needs or financial/ligation misconduct. That is already what happens in practice in almost every case.

Miller; McFarlane v McFarlane [2006]7 as part of the assessment of fairness8 The term first appears in Lord Nicholls’ lead judgment at paragraph 18:

“Another strand, recognised more explicitly now than formerly, is compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband’s enhanced income. This is often the case.

Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer.

Compensation has almost ‘white leopard’ status in practice. It was run as an argument and rejected in RP v RP [2006]9, VB v JP [2008]10; SA v PA [2014]11 and CR v CR [2007]12

It did feature in H v H [2014]13, where the first instance award contained a compensation element. More recently, Moor J made an award that incorporated the principle of compensation in RC v JC [2020]14, albeit with a warning of exceptionality:

Compensation

Whilst the term ‘contributions’ does at least appear in the statute, ‘compensation’ does not. It emerged in the House of Lords decision, Miller v

8 Interestingly, the concept of ‘fairness’ does not appear in the statute either.

9 [2006] EWHC 3409 (Fam)

10 [2008] EWHC 112 (Fam)

11 [2014] EWHC 392 (Fam)

12 [2007] EWHC 3334 (Fam)

13 [2014] EWCA Civ 1523

14 [2020] EWHC 466 (Fam)

[72] “Exceptionally, in this case, I have found there to have been relationship generated disadvantage sufficient to justify an award of compensation. I continue to be of the view that such cases will be very much the exception rather than the rule. It is rare to be able

to make the findings of fact that I have made in this case. Even having done so, I have been clear that the case remains a suitable one for a clean break with, by the standards of such cases, a relatively modest additional award. I have already made the point that, in many of these cases, the assets will be such that any loss is already covered by the applicant’s sharing claim. In other cases, the assets/income will be insufficient to justify such a claim in the first place. It follows that litigants should think long and hard before launching a claim for relationship generated disadvantage and they should not take this judgment as any sort of “green light” to do so unless the circumstances are truly exceptional.”

The Divorce (Financial Provision) Bill [HL] seeks to introduce compensation into statute. It appears (albeit not in name) within the considerations that must be taken into account when making a periodical payments order:

“5(1)(a) any economic advantage derived by either party from contributions by the other, and any economic disadvantage suffered by either party in the interests of the other party or of their family;”

This would, in my view, be a mistake.

It seems counterintuitive for judges to repeatedly refer to the importance of ‘assessing fairness in the round’ and ‘holistic analysis’ if we are going to ignore a simple and irrefutable truth: forgoing a potentially lucrative career is often part of a bargain, exchanged for something else (e.g. a loving relationship with another person, potentially the creation of one’s own family unit, or a life of leisure). If earning money at a level in excess of one’s needs is more important than supporting a loved one or bringing up children, do not give up a career. If a marriage (or the continuation of a

15 RP v RP [2006] EWHC 3409 (Fam),

marriage) is contingent on relinquishing one’s career, consider whether a career or the relationship matters more. Being able to ‘bank’ the benefits of the marriage and then, in the event of separation, be compensated or insured for choices that facilitated those benefits is a perfect example of ‘having one’s cake and eating it’. It is like a gameshow contestant being shown what was behind the door they did not choose, and then giving them both prizes anyway.

Doing away with compensation as a concept would have very little impact. It certainly would not put anyone in a perilous financial situation. Maintenance already exists as a form of insurance in the event of relationship breakdown. It is referrable to needs and those needs are generously assessed, taking into account the standard of living. It is therefore circular to some extent given that, where one spouse has given up a potentially lucrative career, it is often in order to support someone in an even more lucrative career who is funding a lifestyle that then becomes relevant to their ‘needs’. That may be reductive but it does highlight that, even in the rare instances where a compensation claim has some merit, the absence of a compensation claim would likely cause minimal financial prejudice.

Practical issues, as well as conceptual difficulties, arise in connection with compensation. How can judges quantify the actual economic disadvantage suffered by a person? This cannot be simplified by a formula. It is rooted in subjectivity and speculation. Lawmakers should be encouraging and facilitating settlement by reducing the areas of subjective dispute. Compensation requires a factual determination based on speculation. The prospects of settlement in a case where

compensation is being pleaded are significantly undermined by numerous potential grounds for disagreement, including: (i) whether someone has actually suffered economic disadvantage; (ii) the quantification of that economic disadvantage; and (iii) the extent and period for which the ‘paying party’ should underwrite that ‘loss’.

At a point in people’s lives often ablaze with regret and unhelpful imaginings of what ‘could have been’, compensation is fuel to the fire. Coleridge J observed that compensation was a “methodology or approach akin to a damages claim”.15 In a sense it treats decisions made during the marriage like an accident. That must be wrong.

Conclusion

Contributions and compensation are the family law equivalent of the human appendix. They serve little function yet have the capacity to cause significant pain. To complete the analogy, their removal from the family law lexicon would be harmless.

Reducing potential areas of conflict, and discouraging a “rummage through the attic” of the marriage16 to denigrate the other person’s role and apportion blame for what could have been, would remove some of the hostility. Helping to avoid zealous litigants from running futile and expensive arguments, which undermine the prospects of settlement, is also beneficial.

Reform is necessary to create greater certainty. The terms ‘contributions’ and ‘compensation’ should be consigned to history.

THE

IMPORTANCE OF MODERNISING MARRIAGE LAWS IN ENGLAND AND

WALES

TO

REMEDY

THE PROMINENCE OF RELIGIOUS/ CULTURAL NONMARRIAGES AND THE ASSOCIATED LACK OF RIGHTS AND PROTECTIONS IN MATRIMONIAL FINANCE LAW.

Authored by: April La (Associate) – Penningtons Manches Cooper

The law on matrimonial finance in England and Wales provides significant rights and protections to spouses on divorce.1 However, the central elements of the law governing legal marriages date back to the 18th and 19th centuries, reflecting an era which bears little resemblance to modern society.

There are many rules for different groups which remain complex and confusing. The law in its current form has resulted in many couples, particularly those who have religious and/or cultural weddings, entering (knowingly or unknowingly) into ‘non-marriages’. This means that the financial rights and obligations that apply to spouses on divorce and annulment do not apply to them. This is unfair, unjustified and does not meet the population’s needs.

Marriage in England and Wales

To enter a legal marriage in England and Wales, the parties must:

1. Obtain legal authorisation for the wedding;

2. Have a legally recognised wedding ceremony; and

3.Register the marriage

Part III of the Marriage Act 1949 (‘MA 1949’) sets out the rules for civil ceremonies,2 and Part II sets out the rules for religious ceremonies. The latter is divided into 4 groups: Anglican, Jewish, Quaker, and other religious weddings.3 The rules for each type of wedding are different and cover a wide scope such as location, persons who can conduct a ceremony, notice and registration.

Parties in a legal marriage can divorce and are entitled to claim financial provision from each other under the Matrimonial Causes Act 1973 (‘MCA 1973’) (or their estate in the event of death).4

Non-marriage and the correlation with religious marriages

The law governing marriage in England and Wales was created at a time when most of the UK population lived and married within the same community

whilst sharing the same religion and traditions.5

However, society’s demographic, practices and beliefs have changed and diversified. Today, how couples want to celebrate their wedding may differ from how the law requires them to celebrate it.

This is particularly prevalent amongst individuals who want a religious and/ or cultural ceremony. For example, a legal ceremony for religious weddings, other than Anglican, Jewish or Quaker weddings, must take place in a registered place of worship.6 Some religious groups such as Muslims, Jains and Hindus do not see their place of worship as the most appropriate or meaningful location to get married. As a result, these couples often choose to have their wedding ceremony in a different location which may not satisfy the legal requirements for marriage.7 Alternatively, some couples marry in an unregistered place of worship. In

2017, up to 90% of UK mosques were not registered to conduct lawful marriages.8 By 2021, the position remained largely unchanged, with some estimates of registered mosques in England and Wales still being as low as 10%.9

The law may not recognise these marriages at all and classify them as ‘non-marriages’. When a non-marriage breaks down, the parties are not entitled to apply for financial remedies. The only routes of financial relief possibly available would be an application under the Trusts of Land and Appointment of Trustees Act 1996 if the couple owns property,10 or a claim under Schedule 1 to the Children Act 198911 if there are children.12 If one party dies, the surviving party can claim financial provision from their estate if they had lived together for two years prior to their death in the same household and lived as if they were a married couple.13 However, they would only be entitled to financial provision required for their maintenance whereas spouses are entitled to ‘financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive’.14 As such, the financial provision for a surviving partner in a

non-marriage is less generous.

There have been many cases of religious non-marriages, some of which are entered into knowingly and others unknowingly.

For example, in Gandhi v Patel [2001],15 H and W had a Hindu marriage ceremony conducted by a Brahmin priest at a London restaurant. The ceremony complied with the traditions of Hinduism but ‘no effort was made to comply in any respect with what the law of England requires to create a lawful marriage’.16 The judge found that it was ‘not a marriage of any kind at all’ as the couple had not complied with the MA 1949.17

In Akhter v Khan [2020],18 H and W had an Islamic marriage ceremony conducted by an Imam at a London restaurant. They understood that this ceremony would not constitute a legal marriage and they intended to follow this with a civil ceremony compliant with English law, but it was never performed. The couple were together for 18 years and had 4 children. When W applied for divorce, the Court at first instance held that this was a void marriage. However, the Court of Appeal subsequently held that an Islamic faith marriage ceremony is a ‘non-qualifying ceremony’.19

Why reform is necessary

The reality is that matrimonial finance law does not offer the same financial

5 Law Commission, Getting Married: A Consultation Paper on Weddings Law (Consultation Paper 247), Chapter 1 Introduction, page 2, para 1.4.

6 Marriage Act 1949, Part III, s 45A(5).

7 Law Commission Consultation Paper (n 6), page 11, para 1.39.

8 Patrick S.Nash, “Sharia in England: The Marriage Law Solution”, Oxford Journal of Law and Religion, 2017, 6, 526.

9 Shaheen Sardar Ali, Justin Jones & Ayesha Shahid, “To register or not to register? Reflections on Muslim marriage practices in Britain”, page 14.

10 Trusts of Land and Appointment of Trustees Act 1996.

11 Children Act 1989, Schedule 1.

12 Children Act 1989, Schedule 1. Some religious marriages are void marriages, in which case the parties can claim financial provision from each other after an order of nullity is granted. However, whether the Court determines it to be a void or non-marriage is fact dependent.

13 Inheritance (Provision for Family and Dependants) Act 1975, s1(1A).

14 ibid, s1(2).

15 [2001] 7 WLUK 791 (High Court).

16 ibid [16].

17 ibid [31].

18 [2020] EWCA Civ 122.

19 ibid [7], [123].

rights and protections to individuals/ communities of certain religions/beliefs as it does to others.

Some might argue that this is rectified by having two wedding ceremonies namely, a (non-qualifying) religious/ cultural ceremony, and a legally recognised civil ceremony. Alternatively, they could get married in a jurisdiction which legally recognises their ceremony of choice.

However, it is unfair and unjustified to require a couple to arrange and/or pay for two weddings rather than one, or to get married in another jurisdiction, because their beliefs/practices differ from ones which were historically accepted as the norm in England and Wales. It creates inequality.

Secondly, it is realistic for couples to intend to follow a religious nonqualifying ceremony with a qualifying civil ceremony and for the latter not to happen. Sometimes life gets in the way, couples never get around to it, or one couple may push for it and the other does not. Akhter v Khan [2020] is an example of the latter.20

Unfortunately, it is also common for one or both parties to not realise that

20 Akhter v Khan (n 19).

they have entered into a non-marriage, and they only discover their lack of legal status when their relationship breaks down or if one party dies.

This is a risk particularly amongst parties who come from low socioeconomic backgrounds, closed communities and/or have language barriers. The risk and financial implications of being in a non-marriage are often felt by financially weaker parties, who are disproportionately women.21

Following Akhter v Khan, a report by Civitas showed ‘a significant number of Muslim women in the United Kingdom are in unregistered religious-only marriages, many of whom will be unaware that they lack legal protections and access to marital rights’.22 It also found that there were approximately 20,000 polygamous unions in the UK, and it is not uncommon for men in the Muslim community to have several wives through unregistered religious only marriages.23

In 2017, Channel 4 produced a documentary ‘The Truth about Islamic

Marriage’ where researchers had spoken to 923 Muslim women, 99% of which had a Nikah, 60.1% did not have a civil ceremony, 78% wanted their marriage to be legally valid in the UK, and 28.2% falsely believed that they were legally married.24 The Casey Review 2016 found that there were up to 100,000 Sharia Law marriages in the UK, 70-75% of which were unregistered.25

These women can find themselves in a precarious position if they or their husband decide to divorce, as they will have little to no entitlement to share assets and property, leaving them and any children of the relationship financially vulnerable. These individuals may turn to religious courts for remedies, such as the Sharia Courts in Islamic law, but this can offer little to no protection. For example, in Islamic law a woman’s right to property and financial

assets are not protected after divorce unless they are in her name. There is also an abundance of case studies which highlight concerning attitudes in the Shariah Courts such as telling women to stay silent, justifying domestic violence and encouraging women to remain in abusive relationships.26

Some individuals may be forced to stay in a religious marriage where they are unhappy and subjected to domestic abuse and exploitation. The risk of this may be especially high in a long marriage or if they have children because they would not be able to

21 Law Commission Consultation Paper (n 6), page 6, para 1.19.

22 Emma Webb, “Fallen through the cracks Unregistered Islamic marriages in England and Wales, and the future of legislative reform”, Civitas (2020), page 2.

23 ibid, pages xi, 3, 65.

24 ibid, page 5.

25 Dame Louise Casey DBE CB, “The Casey Review A review into opportunity and integration” (2016), page 133, para 8.42.

26 Emma Webb (n 23), page 7, 15-72.

support themselves without financial provision.

Proposals for reform

The Law Commission published a report in July 2022 which included several good proposals for reform, largely mirroring the proposals in its consultation paper in 2020.27

Instead of having many rules and restrictions which vary depending on the type of wedding, they recommend simplifying the law and applying the same legal rules to all weddings (with very few exceptions). The system would be changed from one based on the regulation of the building in which the ceremony takes place, to one based on the regulation of the officiant of the ceremony. This system would reflect the approach adopted in many other countries including Scotland, Northern Ireland, Ireland, Jersey, and Guernsey.28

The proposed system is summarised as follows:

The couple would still be required to give notice of their intention to marry but it is made easier by being available online.

An officiant will conduct the ceremony. They are trained and monitored to comply with the ‘fit and proper’ standard.

The couple each express consent to be married.

Beyond the expression of consent, there are no specific requirements as to the form of the ceremony e.g. there are no prescribed words. The form simply needs to be agreed by the couple and the officiant, and the location deemed safe and dignified by the officiant.

The location of the wedding will otherwise no longer play any role.

There must be 2 witnesses.

The marriage must be registered.29 By simplifying the rules in this way and applying them to all weddings, the law would be far easier to understand, and it is likely that fewer couples would unknowingly have non-qualifying ceremonies. The removal of restrictions on the location and form of a wedding will allow couples greater freedom in deciding how they celebrate, especially

for religious and cultural ceremonies. This should result in more religious marriages being legal marriages, thereby widening the scope of matrimonial finance law to protect these groups and creating greater equality.

Baroness Burt of Solihull rightly said in the House of Lords that ‘Marriage… gives protections and rights that should be available to all couples regardless of whether or not they are religious’.

These reforms would retain the important sense of formality and rules for a legal marriage, and would not take away the opportunity for a couple to choose a religious non-qualifying ceremony e.g. if they do not want the financial rights and obligations that come with marriage.

In addition to these legal reforms, the Law Society sensibly suggests that

27 Law Commission, Celebrating Marriage (n 2); Law Commission Consultation Paper (n 6).

28 Law Commission, “Celebrating Marriage: A New Weddings Law Summary Report”,

an educational campaign would be beneficial as it would still be important to increase understanding of the requirements of a legal marriage and the financial implications of being in a non-marriage.

Conclusion

It is hoped that the Government will adopt the proposals identified by the Law Commission to simplify the law on marriage and apply the same law to all weddings so that fewer religious and/or cultural weddings result in nonmarriages. The law should offer the same matrimonial financial rights and protections to couples who celebrate their wedding in accordance with their own beliefs and traditions and they should not be penalised in the law for doing so.

NON-MARITAL RELATIONSHIPS AND MATRIMONIAL FINANCE LAW

Authored by: Calum Whelan (Associate) – Gateley

I propose to bring non-marital relationships into the sphere of matrimonial finance law.

I will give some background to the current law in respect of non-marital relationships and how this can impact negatively upon the parties involved before then analysing a number of other jurisdictions and the rules in place there and how they may differ and the advantages they may bring to England and Wales.

Current position in England and Wales

The current legal position regarding the breakdown of non-marital relationships is notoriously complex even for a significant number of lawyers specialising in family law, never mind the public at large.

Marriage

This is in significant contrast to the position on the breakdown of a marriage which appears to be much more clearly understood by the public given its relatively simple starting point of an equal division of matrimonial assets no matter in which parties’ name they are held.

Non-marital relationships

As things currently stand, upon the breakdown of a non-marital relationship there is no automatic entitlement to share any asset which is not held in the joint names of the parties.

In terms of assets held in the sole name of one of the parties there is the possibility to try to establish a beneficial interest in what could be called the former family home, and potentially, although more remote, any other properties that may be owned by the parties.

No pension sharing will take place and the only sharing of savings or investments will be of assets that are held in joint names. Significantly there is also no apportionment relating to debt that may have been accumulated by the parties.

Key current legislation - Trusts of Land and Appointment of Trustees Act 1996

This legislation allows parties to make a claim via the county court to establish an interest in a property via an application for a declaration regarding their beneficial interest. They can then look to have an order for the sale of the property made if necessary.

For many claimants the property is held in the sole name of their former partner, and this will generally be a property they have lived together at for many years. Upon the breakdown of the relationship,

and disagreement regarding the property, they are then forced to try and establish an interest in the property via a two-stage process.

They must first evidence that there was a common intention between the parties for the property to be jointly owned, and then show that they relied on this common intention to their detriment.

In an ideal world this common intention would be expressly shown in writing, but this is rarely the case and so claimants must then try and establish a common intention by implication from the parties’ conduct towards each other.

They must trawl through text messages, email, and social media correspondence for conversations regarding the ownership of the property and the slightest suggestion that the property is jointly owned in some way and the implication that a common intention exists.

They are forced to recall minute details of conversations they have had over the course of what may be a relationship lasting decades. This all to try and ensure they continue to have a roof over their heads when they have believed that they were secure in their financial and housing position given their relationship and usually their contributions towards the mortgage and household outgoings.

If they are successful in amassing sufficient information to put together a strong enough case to make a claim, they then must make that claim via the county courts with the usual CPR costs consequences should they not be successful.

If they are successful, then it is by no means a given that they will establish a 50% beneficial interest in the property.

This is in stark contrast to the position if the parties were married when an application for a financial remedy involves no real costs consequences and the eventual settlement will be based upon fairness and the provision for each parties’ needs.

Why is reform needed?

Reform is needed because fewer and fewer people are getting married.

By 2019 there had been an almost 50% drop in the numbers of people getting married each year since their peak in 1972 and so the law needs to reflect those changes in society.1

Many of these people feel that they are essentially married and their relationships have all the characteristics of a marriage, just without having the formal ceremony. Upon the breakdown of these often long and significant relationships parties can be left in polarised financial positions with many people, particularly women, being left with almost nothing.

Analysis of other jurisdictions

Jurisdiction of interest when looking

https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marria

at different approaches towards these issues are California and the Federal courts of Australia.

California differs to England and Wales in that it has developed to incorporate sharing elements in relation to assets

other than the former family home within non-marital relationships.

Australia has moved further and has essentially brought financial provision upon the breakdown of non-marital relationships into a similar position to that for marital relationships.

California

In California, and several other US jurisdictions, there is the right to make a ‘palimony’ claim.

This has been the position since 1976 and the precedent case of Marvin -vMarvin (1976)2 involving the actor, Lee Marvin.

The number of non-marital relationships had increased in California during the 1960s and until this case it was presumed that unmarried parties could separate and go their separate ways without any real financial consequence other than the division of joint assets.

This case established that parties could rely on contract law and equitable remedies if they could show that there was an implied contract between the parties to pool their property and income during their relationship. This has created similar remedies for unmarried couples as those available to married couples.

Within the judgment it is stated that:

‘In the absence of an express contract, the

courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts”.3

While not conclusive, when nonmarital partners live together and hold themselves out as spouses it can result in an implied agreement to share property or to provide post-separation support.

This provision can also extend to include assets other than just the family home.

In the case of Maglica v Maglica (1998)4 the parties were not married. They met in 1971 and the Defendant incorporated Mag Instrument Inc. the manufacturer of Maglite torches in 1974 with all of the shares held in his sole name. They didn’t marry but they cohabited and she took his surname and her two sons worked at the company. She contributed to the company and took the lead in marketing.

The relationship ended in 1992 and proceedings brought under contract law and equitable remedies in the form of a palimony suit ultimately resulted in her being awarded $29m in respect of the value of her services towards the business.

Palimony in California takes a much broader approach than the law relating to unmarried couples in England and Wales and can look at property, business, savings, and alimony. The concept of non-marital relationship contracts is used and these can be express or implied, and oral or written but the wish to share must be proved in a similar way to that in England and Wales, it is not assumed just by the existence of the relationship.

Despite the increased scope for claiming support and maintenance in California

these rights are not automatic and so there is still risk involved in bringing the litigation, including the significant costs consequences of unsuccessful litigation.

Australia

Australia has recognised ‘de facto relationships’ since the introduction of the Family Law Act 1975.

These are recognised by law when: ‘Two people are in a relationship and are not married, but live together as a couple on a genuine domestic basis. This includes adults of any sex or gender identity. It is not enough just to live in the same house, or even to sleep in the same bed.

To have a recognised relationship you must both intend to live together as a couple.’5

Defacto relationships provide the parties with many of the same rights in respect of property as marriage. If the following criteria apply then a claim for property or maintenance can be made within 2 years of the relationship ending:

The relationship was registered or existed for at least two years; or

There is a child of the relationship; or

Serious injustice would result if an order was not made.

Property disputes are dealt with by the Family Court of Australia under the same

2 Marvin v Marvin (1976) 18 Cal.3d 660 (Marvin)

3 Marvin, p665.

4 Maglica v Maglica (1998) 66 Cal.App.4th 442, 455-457

5 https://lsc.sa.gov.au/resources/DeFactoRelationshipsFactsheet.pdf

principles as for married couples.6

Importantly different asset classes are dealt with differently, for example there is no concept of matrimonial debt within these cases. There are also no inheritance rights from these relationships except for those subject to South Australian law. Pensions can still be shared though which is vital in providing for future income for the parties.7

The system in Australia results in much fairer outcomes for most cases. The assumption is that if you wish to enter a relationship which has the required characteristics then you are assumed to be pooling your assets and resources for the benefit of both parties and they can therefore be shared between the parties should the relationship later break down, in much the same way as with a marriage.

Conclusion

There are many unfair outcomes under the law as it currently stands in England and Wales. Often parties can be left destitute after being in a relationship for sometimes decades.

These relationships are long term, established relationships often with all of the characteristics of marriage. Despite this, parties are then reliant on having to prove that an agreement has been reached, either express or implied, that they will own a property between them. Claimants then need to show that they have relied on this understanding to their detriment, when even making payments towards a mortgage may not be enough. There is no automatic provision for inheritance or the sharing of other assets such as savings, business assets, or pensions.

This is not fit for purpose in a society in which the numbers getting married are steadily reducing. Firstly from an individual perspective and the very unfortunate outcomes that are seen in many of these cases, but also from a public policy perspective as it could be said that many of these outcomes are worse than any ever seen within divorce proceedings no matter which historical legislation was in place over the last 150 years.

Financial provision should therefore be introduced for non-marital relationships in much the same format as that for defacto relationships in Australia. The only burden then is upon someone showing that they were in fact in such a relationship. Once that is shown they will then divide assets in much the same way as married couples do upon divorce.

6 https://lsc.sa.gov.au/resources/DeFactoRelationshipsFactsheet.pdf

NO REFORM REQUIRED NORTH OF THE BORDER

“Like the Forth Bridge, it was built to last for a very long time.”1 Lord Hope was, of course, correct in making these comments of The Family Law (Scotland) Act 1985. The fact that, the best part of 40 years later, the 1985 Act is still going strong, is testament to that.

The 1985 Act seeks to achieve fairness between parties on divorce2 and, by and large, its provisions enable a fair

and equitable split of the matrimonial property to take place. However, although the wording of the 1985 Act is non-gendered3, there is an inherent unfair approach taken by the Scottish Courts when considering non-financial contributions to a marriage. Typically, even in 2023, it is women who assume the role of homemaker, often working part-time or indeed not at all, to care for their family.4

On divorce, the financial provision awarded by the Scottish courts does not always properly redress that

1 Lord Hope Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 at 106.

economic disadvantage nor does it properly provide for the future of the person who has suffered that economic disadvantage.

How could the 1985 Act be used better and how does that compare to the approach south of the border in England and Wales?

The 1985 Act sets out 5 principles which the court shall apply in deciding what order for financial provision, if any, to make on divorce: that the property accumulated during the

2 For brevity, reference will be made to divorce only but that should be understood as divorce and dissolution of civil partnership. Similarly, reference to spouse includes civil partner.

At the time the 1985 Act

Gender

(www.gov.scot)

Authored by: Debbie Reekie (Senior Associate) – Brodies LLP

marriage5 should be shared fairly on divorce6; that any economic advantage obtained by one party as a result of contributions made by the other party or any economic disadvantage suffered as a result of contributions made to the other should be balanced on divorce7; that the ongoing economic burden of childcare should be shared fairly8; that a spouse who was substantially financially dependent upon the other during marriage may be given a period to readjust, up to a maximum of three years9 and, that financial provision can be made if one party is likely to suffer serious financial hardship as a result of the divorce.10

contributions to the marriage can indeed include “contributions made by looking after the family home or caring for the family.”12

The law in Scotland tries to promote a clean financial break between the parties wherever possible. Ideally, that will be an equal sharing of the matrimonial property. The Scottish courts can be invited to share the matrimonial property unequally to recognise any economic disadvantage suffered by either party in the interests of the other party or of the family11. The provisions of s.9(1)(b) therefore explicitly recognise the potential for disadvantage on divorce which might arise if one spouse has sacrificed paid employment to provide unpaid contributions in looking after the family home or caring for the family. s.9(2) thereafter clarifies that such

The case law on s.9(1)(b) in this context is unfortunately scant. The leading case on this matter is undoubtedly Coyle v Coyle.13 This is a typical case of a breadwinner husband and homemaker wife. Mrs Coyle gave up her successful career with Caledonian Airways, and the prospect of significant further career opportunities, as her husband did not want her to work. She ran their house and looked after their three children while Mr Coyle worked long, unsocial hours in the family business, the consequence of which was a significant increase in value of the business over the course of the parties’ marriage14 Mrs Coyle sought to argue firstly that her husband sustained an economic advantage from her contributions (in other words, that he could work without the burden of domestic responsibility) and secondly that she has had suffered an economic disadvantage in the interests of her husband and her children (in other words, she refrained from pursuing her career).

Lady Smith deals with the two parts of s.9(1)(b) separately in her Judgment. She rejects Mrs Coyle’s argument that Mr Coyle derived an economic advantage from her efforts in running the house and caring for the children suggesting that, had Mrs Coyle not been doing that, she would have been

earning a significant salary thus bringing more income into the household from which the cost of help could have been met.15 The judge did not accept that there was any clear identifiable advantage to Mr Coyle which derived from Mrs Coyle’s contributions.

A better way for Lady Smith to deal with this point might have been to consider the financial value of 20 years domestic work. It is not uncommon for households to employ domestic help such as a cleaner, a nanny, a gardener, a dog walker etc., and so the cost of (or, more appropriately, the value of) these services could easily be ascertained and calculated. Mrs Coyle undoubtedly worked long unsociable hours just like Mr Coyle although the value of her contribution simply disappears. A marriage is a partnership and equal consideration must be given to the noneconomic contributions as well as the economic ones.

In her judgment Lady Smith says that ‘it is important to recognise that Parliament did not, in the 1985 Act, provide that whenever a couple divorce after marriage in which one has been the breadwinner and one has been the homemaker, the latter must receive extra and compensatory financial provision on divorce…it must be established that there has been an identifiable economic advantage which derives from an identifiable contribution by the other spouse and it must appear fair to the court to take account of it.’16 Whilst that may be the case, the 1985 Act clearly gives judges the ability to really consider the contributions that each party made to the marriage, whether financial or not.

Lady Smith treats the question of the disadvantage sustained by Mrs Coyle in the interests of the family differently. Clear evidence was presented to the court17 of the disadvantage Mrs Coyle had suffered by giving up her successful career. Lady Smith recognised that

5 The matrimonial property being all assets acquired during the marriage from the income and efforts of the parties. Inheritance and gifts from 3rd parties are excluded.

6 The Family Law (Scotland) Act 1985 s.9(1)(a)

7 Ibid. s.9(1)(b)

8 Ibid. s9(1)(c)

9 Ibid. s.9(1)(d)

10 Ibid. s.9(1)(e)

11 Ibid s.9(1)(b)

12 ‘s.9(2)…”contributions” means contributions made whether before or during the marriage; and includes indirect and non-financial contributions and, in particular, any such contributions made by looking after the family home or caring for the family.’

13 2004 FamLR 2

14 Mr Coyle’s business was not part of the matrimonial property and so Mrs Coyle had no claim on it.

15 2004 FamLR 2 at 38.

16 Ibid. at 37

17 Mrs Coyle’s friend and co-worker at the point she gave up work gave evidence as to her current salary and pension which were significant.

s.9(1)(b) applied but ultimately, she reached the view that no further award should be made to Mrs Coyle, but only because of the way she shared the matrimonial property between the parties. The matrimonial home was transferred to Mrs Coyle as part of settlement and the value of that property had increased significantly. Lady Smith specifically clarifies that she is ‘satisfied that the clear imbalance arising from the economic disadvantage sustained by the pursuer will be corrected by an award of the sum which is produced as a result of the equalisation process.’18

Whilst the approach of Lady Smith recognises the economic disadvantage Mrs Coyle suffered, it does not go as far as it should given the economic disparity between the parties. Mr Coyle had his interest in a successful and profitable business and pension scheme. He had the ability to work in his business going forward. He also had his share of the matrimonial property. In contrast, Mrs Coyle had no qualifications, no job and no pension. Given the amount of time she had been out of work it is perhaps unlikely that she would have been able to secure gainful employment easily or which paid sufficiently How can that be fair, fairness being the very aim of the 1985 Act.19

This unfairness is perhaps made more apparent by the very limited scope for ongoing maintenance in Scotland. The 1985 Act allows for ongoing financial support if one party has been substantially financially dependent on the other, but that support is limited to a period of just three years post-divorce.20 There is therefore an expectation that even if one party has been out of work for a while, he or she will return to earn as soon as possible, and certainly within 3 years. That is aspirational rather than reality. It assumes that after divorce it is easy to re-enter employment. If someone has been out of work for many years (like Mrs Coyle who was a homemaker for some 20 years) then it may be very difficult for them to find suitable employment having regard to their lack of experience. They may also be more senior in years making them less attractive to potential employers. At the other end of the spectrum trying to balance childcare may not only make trying to find employment difficult but the prohibitive cost of childcare may make that impossible.21 Three years is a very short period of time for someone to readjust and to become a completely financially independent worker.

There is little consideration in Scotland of future economic disparity in the way that there is in England and Wales. There is no sharing of the future income of a former spouse. Miller v Miller; McFarlane v McFarlane22 was key in acknowledging the economic disparity that might exist on divorce. As Lord Nicholls said:

‘For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his

earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss; a diminution in her earning capacity and the loss of a share in her husband’s enhanced income.’23

The 1985 Act however gives judges the ability to consider making an additional award under s.9(1)(b) which would redress this disparity. The 1985 Act gives considerable scope and opportunity to the court to tailor awards made to suit the bespoke circumstances of each individual case, reflecting both the financial and non-financial contributions made by the parties and to consider how that impacts the parties on divorce. The law does not require to be reformed but rather the provisions already available within the 1985 Act require to be utilised for their full potential. It is us lawyers who must change how we plead and argue cases like Mrs Coyle’s and judges who must be bold in their awards to properly ensure that the 1985 Act achieves, in 2023, a true ungendered fairness for parties on divorce.

18 2004 FamLR 2 at 72

19 For a feminist reworking of Coyle

21 https://www.closethegap.org.uk/content/resources/CtG-and-OPFS---A-childcare-system-for-all-FINAL.pdf

22 2006] UKHL 24

23 At 13

v Coyle

by Professor J Mair in: Cowan, S., Kennedy, C. and Munro, V. E (eds)

DISCRETION AND FLEXIBILITY IN THE MATRIMONIAL CAUSES ACT 1973 IS SEPARATED BY A BORDER OF 96 MILES

HOW

CAN A TWO-HOUR ROUND TRIP DETERMINE THE FINANCIAL PROVISION ON DIVORCE?

‘I suggest a system that allows grotesque levels of costs to be run up offends the key constitutional principle that justice should never have to be purchased’.1

The Matrimonial Causes Act 1973 (MCA) recently reached its fiftieth anniversary and during this time, there has been substantial law reform and changes including: the Matrimonial Proceedings and Property Act 1984, the launch of the Child Support Agency, the case of White v White2, the introduction of civil partnership ceremonies, Miller v Miller; McFarlane v McFarlane3, same sex marriages, regulation of domestic abuse offences and no-fault divorce4 And that is to name only a few. If the process of divorce in England and Wales has been around for hundreds

of years, and it has been shaped as social attitudes change – why has the MCA not evolved at the same pace, and developed to recognise the shift in required reform?

The MCA is the foundation of the law relating to the determination and division of financial assets on divorce. It sets out the orders that the court have the power to make, and the factors guiding the court when making those decisions. The MCA only goes so far, and thereafter it is assisted by case law and approaches adopted in practice. It is currently accepted that family law includes discretion, but that welcomes debate as to what is considered fair and appropriate. If the parties are not agreed, contentious litigation is likely – and so are the grotesque level of costs referred to by Mr Justice Mostyn. There are no constraints or limits on what can be applied in court, judges are provided with the utmost elasticity to deal with the relevant circumstances of each case and the lack of boundaries within the MCA infringes on certainty

1 Mr Justice Mostyn, 13 June 2023: financial remedies reform parliament meeting.

2 [2001] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL

and accessibility. There is clear tension between responsibility and rules in family law, reform is required to introduce a clear, consistent set of principles and maintain an element of discretion, but not so much to allow it to be unfettered.

Miller v Miller; McFarlane v McFarlane identified three important principles derived from the basic concept of equality which determined the redistribution of financial resources on divorce: needs, sharing and compensation. No doubt family law professionals will be familiar with the

Authored by Emma Jones: (Associate) – Knights

two factors that are at play in most cases – the sharing principle where an equal division of assets between parties should only be departed from if there is good reason for doing so, and the needs of those parties. Mr Justice Mostyn concedes that true discretion exists where the court disposes of an ancillary [financial remedy] relief claim by reference to the needs principle, but argues that it is regulated by, and subordinated to, rules.5 I would respectfully argue that this is a juxtaposition and the application of any so-called rules is currently a voluntary exercise, not a science.

The court recognises that ‘needs’ must be related to the marriage; they will consider the welfare of any child of the family first and thereafter assess the factors set out in Section 25 MCA6. It is well known that parties can be directed to produce S25 MCA statements within financial remedy proceedings, and if Mr Justice Mostyn is of the view that the scope of discretion is highly restricted by rules, the exercise to prepare a witness statement setting out a parties evidence which the court will have regard to when making a decision, feels somewhat redundant. It is my respectful opinion that there is a requirement for updated principles underlying S25 MCA – it is simply not good enough what Mr Justice Mostyn believes, that there are rules that apply where the sharing principle is applied – the twostage process of identifying the scale of matrimonial property, followed by its division. In Hart v Hart7, Lord Justice Moylan recognised the need for clear guidance and principles when the court 5

is given a discretion as wide as that contained in Section 258. It has been described as ‘to bargain in the shadow of the law’9. Somewhat concerning, –and I certainly would not be advising clients on that basis. If the MCA set out a clear set of underpinning principles to be followed, the lack of transparency and consistent application could be resolved, or at best considerably mitigated.

To remove unpredictably, conflicting decisions and disproportionate costs when determining the financial assets on divorce, S.25 MCA should be reformed to include principles akin to those of Scottish law – and the headline will be recognising an equal division of matrimonial property only as a starting point. It very much seems that the application of the Family Law (Scotland) Act 1985 provides certainty and enough flexibility to provide a fair outcome. The proposed reform would only be departed from by an agreement between the parties (perhaps I am also suggesting that pre- and post-nuptial agreements themselves should become binding and enforceable), the needs of any children and conduct of either party. No doubt the proposal to exclude pre- and post-martial property without question will bring a sigh of relief to most family law professionals.

As Lord Justice McFarlane (as he was then) put in Sharp v Sharp10, the inescapable conclusion from this analysis of the

speeches in Miller, in terms of the possibility of some alteration from, rather than a strict application of, the equal sharing principle in relation to short, childless marriages, where both spouses have largely been in full-time employment and where only some of their finances have been pooled, is that fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.

McFarlane LJ surely invites commentary on this topic: how is it that one party who brings significant wealth into the marriage can be advised that it forms part of the assets subject to division? Discretion. Those arguing that such wealth is squarely pre-matrimonial will be familiar with the approach summarised in the latest edition of the Dictionary of Financial Remedies (2022): The current state of the law is that, where considerations of need do not arise, the court is likely to start from the position that matrimonial assets will be subject to the sharing principle and divided equally between the parties and non-matrimonial assets will not be so subject and will remain in the hands of the party who contributed them.11 I am almost certain that too many family law professionals have seen parties in proceedings spending their wealth on disproportionate legal costs, to simply argue what their wealth actually is on paper.

The very crux of the issue relates back to discretion – the application of this exercise by a Judge sitting in the Family Court at Newcastle versus The Family Court at Guildford, Winchester or even the CFC is inevitably going to lead to unpredictability. London is labelled as the divorce capital of the world, perhaps offering more generous awards than those in local family courts. Is there really a need to invade preand post-matrimonial property in these generous cases, or is it simply because that is what has been done in the last fifty years? I have to say, respectfully, that I do believe recently appointed District Judges are likely to take a far more up-to-date approach towards FDR indications and Judgments, than those who have been sitting since the introduction of the Matrimonial Proceedings and Property Act 1984. The removal of judicial discretion in so far as possible as to the application of S.25 MCA will reduce the ambiguity across the Family Courts in the country. It is no surprise that references are frequently made to a postcode lottery with different outcomes in courts across England and Wales.

If I am going so far as to criticise S.25 MCA and suggest that it is an outdated piece of legislation, then it must be remodelled to recognise that parties are no longer always reliant on the other person for financial support both during the marriage and for the rest of their lives. One party – typically the wife, is now often far more financially selfsufficient and independent. We cannot celebrate societal changes towards equal pay, the Me Too movement and treatment of women in the workplace, when the law is not keeping up too. We cannot advocate that the financially weaker party in the divorce should and could improve their earning capacity, but also be met with arguments proposing the sharing of the other parties income. If there is scope and the judicial discretion to be either end of the yardstick, it is inevitable that there will be several disputed issues. If one party to the relationship has successful built their entire earned income before marriage, why should there even be a discussion that the other party may

have a claim to it? If one party to the relationship has secured a well-earned promotion after separation, why should the other party benefit? A party can currently argue both sides of the fence, and incur substantial legal costs simply for the privilege of doing so. There is surely a moral and practical incentive for both parties to improve their respective individual financial landscapes without relying on the other’s pre- and postmartial property if the very idea of being able to do so is removed. Party autonomy and an equal division of matrimonial property only should be the ultimate outcome – unless there are such exceptional circumstances to justify otherwise and even then, the determination of how much the pre- and post-martial property is to be invaded is very much a discretionary exercise as well. So where does that leave us?

Discretion in family law should be replaced with flexibility. It should not be for the Judge to take a view, but to apply the clear set of underpinning principles an updated MCA. The starting point will be an equal division of matrimonial property only, not what has been accrued before or thereafter. The court will only be persuaded otherwise with the flexible application of the MCA in exceptional circumstances and perhaps as set out in Section 10(6) of the Family Law (Scotland) Act 1985. The Anglo-Scottish border separating Scotland and England runs for 96 miles, there is no physical infrastructure to indicate the borders existence, but it marks the boundaries of family law –and for many the uncertain application of principles, rules and discretion.

LAW REFORMS FOR NON-MARITAL RELATIONSHIPS: FINANCIAL

PROVISION FOR THE 51%1

by: Hannah Gibbons (Associate) – Stevens & Bolton

essay. If more than 50% of couples are now seeking to establish their families outside of a marriage or civil partnerships, why are their options for financial resolution on separation costly and complex ‘TOLATA’ (Trusts of Land and Appointment of Trustees Act 1996) or ‘Schedule 1’ (Schedule 1 of the Children Act 1989) proceedings?1

There has been much social and political change in the last 30 to 40 years and the existing law on nonmarital financial resolution is severely lacking behind these developments, which is now proving to be detrimental to the 51%.

parties were separating a few months after the birth of their first child. The parties had been in a relationship since secondary school and were living in a 2-bedroom flat in Chelsea. Mother was in her late 20s and seeking work following her maternity leave, father was a trader with a significant income but turbulent employment history. Cumulatively the parties were income rich but capital poor. Following the birth of their child, the tensions in their relationship grew and culminated in father locking mother and baby out of the property late one evening. Despite attempts to negotiate with father directly, mother and baby had to reside with grandparents whilst father resided unaffected in the 2-bedroom property with a new partner. The Schedule 1 application was made by the mother based on the child’s need for housing. Father subsequently made a child arrangements application, and the proceedings were merged. The hearings were traumatic for my client as

his request for further contact and his argument to stay in the property.

The Judge was taken with the photos and even attempted to make an arrangements order scheduling my client’s breastfeeding timings for the child. We managed to argue against this and agree interim child arrangements, however mother withdrew her Schedule 1 application as she found the process too intimidating, invasive, and costly. Despite counsel’s assurances that she had a strong case, mother, with

Authored

new-born baby, walked away from the relationship with very little by way of assets and child maintenance. This is the harsh reality for couples who aren’t married and have decided to separate, particularly where one party has little consideration for the welfare of the other. These couples must either make peace with any arrangements they can agree directly (if any) or commence complex proceedings to explore the shared intentions and conduct within their dynamic, to assess what this would translate to in ownership and monetary terms. The same cannot be said for most divorcing couples who, in financial proceedings, can mostly focus on their needs and the division of assets with a view to a 50:50 starting point under the current law.

The law

When unmarried parties seek advice on how to resolve the finances, they are usually provided with a warning that TOLATA proceedings and Schedule 1 applications are complex and expensive, and the best approach is to try and resolve matters directly or rely on the ‘bank of Mum and Dad’ to ‘buy out’ the other party’s interest if a property is involved. Again, another example of how the complexities in this area of law make financial resolution accessible to only those who can afford it, restricting access to justice for the 51% or unmarried couples with children.

Delving further into the relevant factors for separating unmarried couples and pre-action conduct: terms of ownership, establishing beneficial interests and assessing ancillary trusts

are another key set of considerations in these cohabitation cases. Stack v Dowden2 is the key case setting out what happens to jointly owned property when unmarried couples separate. In this case, the court determined that unmarried couples had joint ownership of a property where they legally and beneficially owned it in equal shares. In this case, it was stated that if a party were to show a different percentage of ownership, then they must highlight examples of the parties’ intentions and conduct to demonstrate the unequal beneficial ownership.

In Capehorn v Harris3, the Court of Appeal assessed what would happen if one of the parties owned the asset

on a sole basis legally, but the other party made a beneficial claim against this. The court set out a two-stage test to confirm whether a trust had arisen and whether the parties should depart from a 50:50 division. Again, this two-stage test relied upon the parties’ pre-action conduct. Based on these displays, it is then for the court to determine and quantify the parties’ respective interests predominantly depending on these issues, whilst only considering factors such as the nature of the parties’ relationship and their needs as an ancillary issue to the parties’ shared intentions. This results in an information-gathering assessment, where the parties scramble to present their intentions typically in the most self-beneficial manner, collating copies of TR1s, Declarations of Trusts, completion statements, evidence of any loan paperwork and so on. This means that these claims are ‘front loaded’ in terms of costs, significant fees can be incurred building a claim which may fail at the first hurdle. The pre-action conduct and protocol is then dictated by the Civil Procedure Rules (CPR), with significant costs consequences if not adhered to appropriately. The threat of cost consequences continues throughout the negotiation process, for example if the claimant obtains a judgment at least as advantageous as their offer, they are entitled to costs.

The contrast

This is quite different to the court’s approach in matrimonial finance cases,

Stack v Dowden

Capehorn v Harris [2015]

where, on separation, most assets are treated as within the joint ‘matrimonial pot’ starting at a 50:50 division. In most scenarios involving a marriage of significant duration, the assets in this ‘pot’ are viewed as jointly owned, subject to a few negotiable areas such as ringfencing pre/post-marital assets or post-separation growth. However, the treatment of these ringfenced assets have less to do with intention and more to do with the assessment of the parties needs and ‘mingling’ with other joint assets.

The complexities in a matrimonial finance matter tend to arise from the intricacy of the asset, as opposed to the intentions behind the ownership.

For example, matrimonial finance cases become more complex when involving the division of international assets or sharing multi-faceted pension arrangements, as opposed to the intricacies arising from intention of ownership. Matrimonial finance cases, depending on the circumstances, are mainly focused on meeting the parties’ needs and assessing future earning capacities and income requirements, which are set against the assets involved in the case to ensure a debt free and fair outcome for those involved, if possible. Unmarried couples do not seem to be afforded the same luxury. Their individual needs only seem to be thoroughly assessed under the guise of the welfare of any children. This is objectively unequal treatment for those who have decided not to get married and results in a predictably less

favourable outcome for the unmarried, financially and/or emotionally weaker party. The treatment of costs is also assessed differently in matrimonial finances cases, where seeking costs is only a real option in circumstances of significant delays or obstructions caused by the other party.

The future

Looking at the proposals for reform, on 4 August 2022 the UK Parliament’s Women and Equalities Committee said in its report for the ‘rights of cohabiting partners’ that the law in this area required an update4. Many areas were addressed in this report, including an ‘opt-out’ cohabitation scheme to protect cohabitees when dealing with the finances upon separation, addressing the rules surrounding intestacy and cohabitees, the division of pensions and a review of tax treatment in alignment with married couples and those in civil partnerships, to name a few5. The Ministry of Justice rejected most points in the report, instead choosing to focus on the conclusion of developments in matrimonial law before addressing the rights of cohabitees6. Although a cautious approach is required to avoid the over-involvement of the courts in the separation of cohabitees who have only been together for a short period, the law is currently penalising separating unmarried couples in comparison to the legal treatment of separating married couples by not affording them the same ease of access to resolution and subsequently, justice.

I query whether the courts could move towards the approach taken in the Scottish legal system, where couples who have lived together for more than a year acquire certain financial rights and any potential financial losses to the weaker financial party are considered in proceedings. Or perhaps a more involved approach, as reflected in the Australian courts, where the separating cohabitees can present certain aspects of their relationship to support their requests in the division of assets, such as the financial dependence of the parties in the context of their commitment to each other. This is a highly progressive approach in comparison with the court’s approach in England and Wales, where the personal needs and requirements of unmarried parties are rarely focused on as a primary concern.

The assessment

I return to the statistic set out in the introduction of this piece. In 2021, more babies were being born outside of marriages and civil partnerships than ever before. The harsh reality is, not all the relationships that formed part of this statistic will stand the test of time and a wave of unmarried couples (with or without children) will be seeking legal advice on their respective separations in the coming years, despite being in their relationships for a significant period. Given the legal complexities and the ancillary costs, these couples are at a significant disadvantage to the couples who chose to be legally bound to their partner. Although it is not the court’s duty to change the law or anticipate social change, the courts must communicate the day-today impact of these relevant social changes to the lawmakers. Instead of focusing reforms on definitions and further widening the ‘gap’ between the married and the cohabiting, the law should allow separating, cohabiting couples to present their needs and have these assessed in the same manner as married couples.

4 House of Commons Women and Equalities Committee, The Rights of Cohabiting Partners, Second Report of the Session 2022-23, https://publications.parliament.uk/pa/cm5803/ cmselect/cmwomeq/92/report.html (last accessed 07.08.2023)

5 Op. cit.

6 House of Commons Women and Equalities Committee, The Rights of Cohabiting Partners: Government response to the Committee’s Second Report, Third Special Report of the Session 2022-23, https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/766/report.html

INFLUENCING MATRIMONIAL FINANCIAL MATTERS THROUGH CHILD INCLUSIVE MEDIATION?

of one another, potentially clouding their judgement and making financial decisions harder to resolve.

Authored by: Isabella Hewlett (Child Consultant) – Civilised Separations

High net worth (HNW) divorce cases are at risk of taking longer to settle, with dividing assets, properties, and pensions all at the forefront of the client’s mind. They may consider mediation before heading down the legal route. Predominantly, mediation only involves children when the parents or mediators see a specific need for it.

They may feel that involving the children might complicate things or that the child may come away from the experience feeling regretful. This perception is problematic because child inclusive mediation (CIM) has the potential to heavily influence the parents’ future relationship, and therefore financial matters. When the children are seen, and the interview is carried out carefully and attentively, the information gathered will have a positive effect on the parents, helping them to feel more compassionate towards one another. The mediator can use this opportunity to remind the parents of what should take priority in all family matters, whether they are a couple or not. Once the parents return to a more positive state of mind, they can communicate more collaboratively, and the discussion of matrimonial finance becomes easier. Reform should be asked for by mediators as well

should be a service that clients opt out of, rather than opt in. As Lady Hale made clear during the law commissions Scarman Lecture in 2019, ‘There is a growing understanding of the importance of listening to the children involved in children’s cases. It is the

child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a view that is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right.’

Considering the strong emotions around divorce, it is unsurprising that mediators might be cautious to discuss the existing relationship between their clients. Two people, who at some point created a life together and started a family, are now facing the painful process of separation.

They often arrive at mediation with a whole range of personal problems including loss of identity, isolation, disbelief, anger, and an inability to parent the way they would have wanted. Mediators will often divert attention away from their emotional experience, and instead focus on the practicalities of separation. In some cases, clients may feel that their mediator considers their narrative to be unimportant, and the mediator might advise counselling. The issue with this process is the likelihood that clients end up in court because the mediator has appeared to be indifferent to their feelings. As an alternative, mediators could allow for more therapeutic techniques to take place. Many mediators base their methods around The Mediation Handbook (Georgakopolous, 2017). This handbook encourages expertise in justice, peace, and conflict resolution. Engagement and connection are the missing links in the mediator’s approach, which results in the clients proceeding to take their matrimonial issues to court. In this case, mediators have failed to give the necessary attention to the client’s personal experience. An effective way to connect with clients on a deeper level, is for the mediator to expand their knowledge on attachment theory and early-developed coping mechanisms. The clients will have learnt unconscious templates on how to be in a relationship, and they will have developed these throughout their childhoods, whilst observing their own parents. CIM is a very useful tool when broaching these concepts with clients.

Mediators can use their interview with their child to shape the theme of the mediation process with the parents. It is highly likely that the clients will be portraying their unconscious templates to their own children, and mediators can highlight these during the feedback session.

By becoming more knowledgeable on peaceful outcomes and conflict resolution, the mediator can themselves, become more open-minded when considering the involvement of CIM. Unfortunately, where there are impacts of divorce on parents, the children experience mistrust, confusion and guilt. They may begin to turn their focus inward, and this is something the mediator can rectify by encouraging the parents to allow their children’s voice to be heard. Children are far more aware of conflict than parents and meditators give them credit for. As discovered during the Still Face Experiment (Barbosa, Beeghly, Moreira, Tronick & Fuertes, 2018), children begin developing their relational skills from the age of

two to three weeks. After involving CIM in their practise, mediators can discuss their knowledge of the child’s current relationship schema, which has developed as a result of observing their parent’s conflictual relationship. As the parent becomes more enlightened to the detrimental effects occurring for their children, they begin to shift in their mental state. They become more empathic towards their ex-partner. This is the state of mind the mediator should encourage, as now they can begin discussing matrimonial financial matters with a more collaborative view of the future. This is why CIM is so powerful, and why it should be advised in all mediation cases.

Currently in mediation, CIM does not hold the same weight when compared to financial or child arrangements. Mediators who are working towards accreditation (WTA) are not even able to train as a child inclusive mediator until after their three-year training period. During that time, they must focus their attention entirely on assisting parents with the logistics of separation. How assets are divided fairly, who will keep the family home, who will have the kids over the Christmas break. Understandably, clients become frustrated when discussing these arrangements. This is because they are going through a divorce, one of the most emotionally damaging experiences a person can have. Why then, are mediators not firstly concerning themselves with the existing relationship between their clients? Of course, it is important to discuss practicalities. However, it should not stop the mediator from exploring how the relationship can

evolve into a healthier one. Financial arrangements, child arrangements and CIM should all play equal roles in mediation. The Perfect Trio of services, all as important as each other, and the most effective way of reaching successful outcomes for separating families.

There appears to be a perspective in mediation that CIM is damaging for children. That it could expose children to conflict unnecessarily, or that CIM could bring about unrealistic expectations for the child. The parents might be pressuring their children or coaching them. These concepts are problematic because they are a result of poor CIM practice, rather than CIM itself.

Angela Lake Carroll

explains that, whilst in mediation with parents, ‘It is unlikely to be helpful for your children to be offered the opportunity to talk with a mediator if there is a lot of conflict between you’.

In fact, interviewing the children with the knowledge of the conflict that exists between the parents, is very useful. Mediators should be helping parents develop a healthier co-parenting relationship, and discussing the conflict is the first step in achieving that. Once the parents manage to divert their energy towards a more constructive family unit, the mediators can start discussing the logistics of their matrimonial financial issues. Simply put, the craft of CIM needs more attention.

Mediators should believe in the necessity for involving CIM, and that it is an equal contributor in the Perfect Trio.

During the CIM session with the children, the mediator will direct the conversation towards the parents’ relationship. In this instance, the children might shift in their body language. They may harden up and begin responding with one-word answers. These indications can enlighten the mediator to the child’s attachment style. They may be worried about sharing too much and putting strain on their parent’s relationship, essentially, putting the wellbeing of their parents before their own. The child’s tendency to dampen their experience is representative of an avoidant conflict style, where the individual chooses to avoid conflict at all costs, because they do not have the relational capacity to handle themselves in an argument (Cann, Norman, Welbourne & Calhoun, 2007). The parents should hear this during the feedback session. All parents want their children to have successful, romantic relationships as adults. How the mediator connects with the child will determine how credible they seem when feeding back the information to the child’s parents. Every child is unique and will have certain traits that highlight their self-identity. They may have an eccentric dress sense, they may describe their thriving social life, they may talk about their hobbies. The mediator should describe these traits to the parents during the feedback session. It will fill them with confidence that the mediator understands their child on a deeper level. After the mediator has described the child’s individuality, the parents should be praised.

The mediator focuses on the uniqueness of the child and then lifts the parent’s spirits through admiration for what they collectively achieved as parents.

Praise is important because the parents will be anxious about what came from the CIM session. They have already taken a brave step in trusting the mediator to interview their child, and this should also be highlighted. When parents feel the mediator truly understand their children, and are made aware of their child’s current attachment style, they will reflect on how their conflictual relationship has impacted the entire family. They may become more willing to cooperate with one another, regardless of the matrimonial issue.

Reform, when considering matrimonial finance, needs to occur in mediation. There should be a stronger focus on the importance of CIM and it should be delivered appropriately. WTA mediators should be able to train in CIM earlier on in their careers, and the outdated ideology that CIM is something to feel intimidated by, needs to change. CIM should hold the same importance as financial matters and child arrangements. If Mediators can adopt the mentality of the Perfect Trio, there will be far more matrimonial financial matters settled in mediation, not in court.

SEPARATION, COHABITATION, AND COMMON

LAW MARRIAGE – CHECK THE SMALL PRINT

It is no secret that the Matrimonial Causes Act 1973 (the Law) is in need of review and reform. Various attempts have been made to encourage reform by both practitioners and the Justice Minister, all attempts just falling slightly short of success and addressing the real problems.

Whilst there has been development of the Law in several key areas, including by White v White1 which, as we all know, established that there should be no discrimination between breadwinner and home-maker when a court considers financial claims and remedies, and Radmacher v Granatino2 which of course provided that, save for in a situation of unfairness, nuptial agreements may be upheld by the court, there are still several areas, including financial remedy for nonmarried couples, which are in serious need of reform.

The framework of the Law is well embedded into society, providing the ability to make financial provision upon divorce and developing key areas by way of case law as time goes on and matters of import change.

The Law, generally, does what it says on the tin. It works well most of the time and provides a good framework and base line, especially in relation to the s.25 criteria, for Judges to base decisions upon and for practitioners to be able to provide good and solid advice to clients. That being said, the Law is 50 years old, and in that time the world has changed and times have moved on: Massachusetts became the first state in America to legalize same

sex marriage, with it becoming legalised nationwide in June 2015 following Obergefell v Hodges3; Barack Obama became the first black president of

Authored by: Jazzmin Le Prevost (Associate) – Collas Crill

the United States; and the #MeToo movement has rocked the globe.4 The world is simply no longer the world it was in 1973.

In 2021 the Office for National Statistics published an article providing an overview of people’s living arrangements in the United Kingdom, including their legal partnership status. Its research showed that the proportion of people who live in a couple that are cohabiting (not in a marriage of civil partnership) has increased from 20.6% in 2011 to 24.3% in 2021, an increase across all age groups aged under 85 years.

This statistic, in its most basic form, means that nearly one quarter of couples living together will, in all likelihood, have little to no financial claims or relief available to them were they to separate, save for in relation to children and child maintenance. Whilst

some couples will chose to cohabit and not marry precisely for the lack of legal rights which cohabiting creates, a large proportion of those couples may also not be aware of the legal position.

In November 2022 the House of Commons Library published a research briefing5 which included earlier studies by the British Social Attitudes Society from 2019, revealing that 46% of cohabiting couples are under the impression that cohabiting forms a “common law marriage”. The number of couples who may be under this impression across the UK is, simply put, terrifying.

In a world where minorities are often already under represented, badly treated or simply dismissed, a person who has been in a long, loving and serious relationship for a number of years, who is then faced with the fact that they have no financial claim against their spouse upon separation, is simply incomprehensible in 2023.It represents an unrealistic view of the world and the current practices of, frankly, most couples.

The issue of financial provision for unmarried couples ought to be of much more importance than it currently appears to be. Reform should centre around the things that are changing with the world, to keep up with the times and the next generation of people.

Argument

There are always going to be two sides to every coin, and the same can be said for the call for matrimonial reform.

Those on the side of reform, as I am, would seek to argue that providing the ability for the court to make financial orders in relation to cohabitating couples upon separation would have wide ranging benefits including, but not limited to,:

1. Providing those in long term relationships with stability and assistance upon separation, especially where one person may have given up a career or job to become a home maker and look after the children. Upon divorce the court has the ability to make such orders and it should be no different for couples in long term relationships who have made the same decisions for the same reasons.

2. The reforms would move with the times of society. Cohabitation is not “taboo” as it once was, and often couples chose to cohabit and never marry. Financial orders being able to be made by the court upon the breakdown of a such a relationship would simply bring the rights of cohabiting couples into line with those of married couples.

3. Those couples who don’t want to marry, who cannot marry or who simply cannot afford to marry, will be able to have the same rights and benefits from their relationship and cohabitation as they would had marriage been an option for them. Couples should not find themselves in the position of being effectively being forced to get married in order to protect themselves just in case they separate.

On the other side of the coin, there are of course arguments to be had in relation to where the court might draw the line (or indeed begin the line!) When the court currently considers financial remedies following the breakdown of a marriage, one of the s.25 factors dictates that the length of the marriage should be considered.

As we all know from tried and tested case law, the length of the marriage applied by the court can have a

4 People’s Living Arrangements in England and Wales: Census 2021: https://www.ons.gov.uk/peoplepopulationandcommunity/householdcharacteristics/ homeinternetandsocialmediausage/articles/livingarrangementsofpeopleinenglandandwales/census2021#:~:text=1.-,Main%20points,groups%20aged%20under%2085%20years. 5 “Common Law Marriage” and Cohabitation, Catherine Fairbairn,

https://researchbriefings.files.parliament.uk/documents/SN03372/SN03372.pdf

significant effect on the orders subsequently made. A short term marriage may result is a smaller award, or in certain assets not being split or not forming part of the matrimonial pot. A long term marriage may well mean that anything and everything is on the table.

If financial remedy were to be made available to cohabitating couples the court would be faced with a similar decision to make in relation to the length of a relationship and cohabitation. Of course, were this to be the case, as with length of marriage, a body of case law would slowly develop and provide much needed guidance in this area.

A second consideration is that if financial remedies to be available to cohabitating couples it is very likely, at least for the first few years, to open the flood gates to new applications and matters. Whilst this can be viewed as a positive thing from the perspective of those couples, it may well not be quite as positive for practitioners who are working in what is already an overworked and understaffed area of law, especially in smaller jurisdictions like Guernsey, where I practice.

Where practitioners are limited, time is limited so a raft of new matters relating to cohabitating couples and financial provision may not be as welcomed by conscientious practitioners as some may think.

Guernsey –Jurisdictional views

I practice in Guernsey, a small island situated 27 miles off of the coast of Normandy. It is a self-governing Crown Dependency and is, comparatively, a relatively small jurisdiction compared to the UK.

The island of Guernsey has some 64,000 residents6 and a person needs to be a Guernsey Advocate7 in order to appear before the Guernsey courts, albeit (save for appearing before the

courts) they can practice as a Solicitor or Barrister in Guernsey, with the supervision of a Guernsey Advocate. Of the some 300 Advocates on the Role of Advocates in Guernsey, only a small handful of those are Matrimonial and/or Family Law practitioners. Even fewer still of those deal with finances and financial claims arising out of a marriage and subsequent separation.

Working in such a small jurisdiction can be and, often is, very rewarding, but it also comes with a counterbalance, that being the heavy caseload given the small number of practitioners and the relatively strenuous process of qualifying as a Guernsey Advocate.

Guernsey often looks to the UK for reform of its own laws, and tends to follow (loosely or otherwise) the framework of Scotland, England and Wales when drafting its own laws. The Matrimonial Causes Law, 19398 is heavily based on the English equivalent, and we would therefore hope that reform affected in England would soon follow into Guernsey.

Guernsey has announced its intention to put into effect a new matrimonial causes law, which will hopefully be effective from 2023. This introduces the no fault divorce to the jurisdiction. This has of course been in effect in England for some time and is the launch board for Guernsey’s own changes and reform in this area.

Conclusion

It is my strong view that reform is clearly needed in relation to financial provision for cohabitating couples upon separation.

Providing the court with the ability to make orders in such circumstances will ensure that couples who, rightly or wrongly, believe they are in some form of “common law marriage” by way of their cohabitation, or who cannot or do not wish to get married, and who have lived in every other way effectively as a married couple, who may have children together, who may have intertwined their finances and mingled their financial affairs and assets, have some recourse should the relationship come to an end.

No one plans for their relationship to end, but everyone should be able to be secure in the knowledge that if the worst were to happen, they would be provided for in a world where the support they may have had throughout their relationship is no longer available to them.

It is clear that in today’s society cohabitation is a growing feature and often the preferred method of a relationship/ As statistics illustrate, a large proportion of society do not see the benefit of marriage, especially where they, perhaps, already own property together and have children. Marriage is also often a luxury that few can afford. The injustice which risks being faced upon separation by those couples who do not marry is astronomical.

Reform is clearly required to many areas of the Law, and this area in particular. I think it is fair to say that a large number, if not most, of practitioners would agree and would be keen to see change being brought to the forefront of everyone’s minds.

6 https://www.gov.gg/population#:~:text=On%2030th%20June%202022%2C%20Guernsey’s,%2C%200.0%20and%200.8%25%20respectively.

7 https://www.guernseybar.com/practising-guernsey-law/advocates.aspx

8 Correct as at the date of drafting. A new law is due to be brought in by the end of 2023

THE DIVISION OF FINANCES ON THE BREAKDOWN OF POLYAMOROUS RELATIONSHIPS IN THE UK:

PROPOSING A NEW LEGAL FRAMEWORK

Authored by: Melissa Hutter (Trainee Solicitor) - Russells

A documented increase in ‘throuples’ and other polyamorous relationships across the UK demands adequate legislation to provide a legal framework on relationship breakdown, particularly in respect to finances and children.

‘Polyamory’ is the practice of having sexual or romantic relationships with two or more people at the same time1 A survey conducted in 2019 found that 7% of UK adults who participated had

been in a polyamorous relationship at some point in their lives2, demonstrating a significant increase from 2015 of 2%3 Last year, 11% of British people in a similar survey reported being open to polyamory4

When an unmarried partner encounters relationship breakdown with two married partners, the matter complexifies with the consideration of both s25 of the

Matrimonial Causes Act 1973 (‘MCA 1973’) and the Trust of Land and Appointment of Trustees Act 1996 (‘TOLATA’). No guidance is given for family law practitioners to determine this issue. Proposed legislation is recommended below to provide a remedy for the unmarried partner encountering financial vulnerability and uncertainty in relation to children.

Finances

A recent case in the Supreme Court of New Zealand entitled Paul v Mead5 sparked the legal debate over polyamorous relationships. Legislation surrounding this matter in New Zealand involved sections 52A and 52B of the Property (Relationships) Act 1976 (‘PRA 1976’), in which the central issue concerned the question of whether polyamorous relationships fit within the meaning of ‘qualifying’ relationships under the PRA 1976. The case involved a married couple and an

1 ‘Polyamory’ (The Cambridge Dictionary ) <https://dictionary.cambridge.org/dictionary/english/polyamory>

2 According to a 2019 survey by YouGov

3 According to a 2015 survey by YouGov

4 According to a 2022 survey by YouGov

5 [2020]

unmarried partner who all lived at the multi-million dollar ‘family home’ for 15 years, sharing the same room and bed. All three contributed financially to the relationship. The property was in the legal name of the unmarried partner who continued to live in the property after relationship breakdown. A dispute as to each party’s entitlement to shares in the property arose6

The New Zealand High Court ruled that they had no jurisdiction over the matter, which was appealed in the Court of Appeal who stated that the Family Court had jurisdiction, classifying the ‘throuple’ as three separate qualifying relationships. It was held by a 3:2 majority in the Supreme Court that the Family Court had jurisdiction and that a polyamorous relationship is approached in the same way as a ‘vee’ relationship (which is where party A is married to party B, and A is also in a consecutive or concurrent de facto relationship with C, but where parties B and C may not know about each other, and may or may not live in the same residence7). It was held that a third person in the polyamorous relationship did not create a material difference towards the application. Two dissenting Supreme Court judges were of the view that it is artificial to recharacterise a relationship into two or more separate couples, that the Family Court had no jurisdiction8 and ‘it should be left to Parliament to decide whether to extend the act and

how to address the practical issues arising from an extension.9’

The case above highlights the wider issue that family law legislation does not have jurisdiction to resolve such disputes, in particular in England and Wales. If this dispute involved multiple properties in foreign jurisdictions with shared assets (businesses, investments, etc.), this could become particularly complex considering a combination of issues regarding jurisdiction, cohabitation and marriage and the percentage entitlement of these assets including businesses involving other shareholders and directors.

In relation to cohabitation of the ‘family home’, current legislation does not rely on that of s25 MCA 1973, which stipulates that ‘in relation to a party to the marriage,’ considerations apply on relationship breakdown under subsections (2)(a)-(h). There is no ‘common law marriage’ in England and Wales so cohabitation disputes instead rely on basic trust principles in respect to land under TOLATA. Beneficial interests are then divided based on:

An express declaration of trust;

A resulting trust arising from the presumed intention of the contributing party10; or

A constructive trust arising from common intention to share

ownership coupled with conduct by the non-legal owner in reliance on that agreement11

If a resulting or constructive trust arises, the parties can apply for an order of sale and/ or a declaration of the parties’ interests in the property under s14 TOLATA. Under s15(1) TOLATA, the court would reach a decision considering:

The intention of the persons who created the trust;

The purpose for which the property subject to the trust is held;

The welfare of any minors occupying, or who are expected to occupy, the property; and

The interests of secured creditors.

The parties can also enter into a cohabitation agreement which sets out arrangements that will apply whilst they are living together. A separation agreement, on the other hand, sets out arrangements for dividing assets on relationship breakdown, acting as an enforceable contract. These are both options for partners in polyamorous relationships, if they seek legal advice on the matter.

Melissa Nightingale, ‘Polyamorous ex-throuple dispute over $2m property leaves Supreme Court split’ [2023] New Zealand Herald

Alice Lemmon, ‘Supreme

Minter Ellison Rudd Watts

Melissa Nightingale, ‘Polyamorous

A polyamorous relationship containing two married partners and one or more unmarried partners where the parties did not enter into a cohabitation or separation agreement goes one step further to a combination of s25 MCA 1973 and TOLATA. The unmarried partner does not have a claim on the married couple’s finances, leaving them in a state of financial vulnerability.

The Law Commission’s 200712 report regarding cohabitation recommended a remedy to be available based on a certain set of requirements. Although over 15 years old, this provides a guideline by which legislation could be recommended to Parliament regarding polyamorous relationships. I would suggest that the following legislation is put forward to Parliament.

A remedy to be available where:

A married couple and one or more partners cohabit in a polyamorous relationship;

Partners in the relationship either have the presence of a child or have been living together for a minimum of 3 years;

They have not made a valid agreement to disapply the scheme; and

The unmarried applicant has made qualifying contributions to the relationship giving rise to certain enduring consequences at the point of separation.

If the polyamorous relationship fulfils the requirements above, the remedy will allow the unmarried partner to have a claim, the starting point being equal shares, with consideration of:

• The income, earning capacity, property and other financial resources which each of the parties to the relationship has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to take steps to acquire;

• The financial needs, obligations and responsibilities which each of the parties has or is likely to have to each other in the foreseeable future;

• The standard of living enjoyed by each of the relationships of the family before their breakdown;

• The age of each party and the duration of each relationship within the family with particular regard to duration of cohabitation;

• Any physical or mental disability of the parties;

• The contributions which each of the parties has made or is likely in the

foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

• The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

• The value to each of the parties of any benefit which, by reason of relationship breakdown, that party will lose the chance of acquiring, including rights in property; and

• The welfare of a child of the parties and the duration that each party has taken care of the child.

Children

In addition to finances, relationship breakdown in polyamorous relationships may also give rise to a dispute in relation to children. In England and Wales, it is not legally possible to have more than two parents on a child’s birth certificate. More than two people can have Parental Responsibility (‘PR’) for a child at the same time13, and a person with PR does not lose it solely because another person acquires it14 PR means all the rights, duties, powers, responsibilities, and authority that a parent of a child has in relation to the child and their property by law15

A third person may seek permission to apply for a Child Arrangements Order (‘CAO’) which will provide some legal status in relation to the child. According to s10 Children Act 1989, the relevant requirements for a person in a polyamorous relationship to apply for a CAO are the following16:

• Any person who has the consent of each of those (if any) who have PR for the child;

• A person who has PR for a child but is not their parent or guardian but they are named in an existing CAO as having PR and although not named as a person with whom the child lives they are named as a person with whom the child is to spend time or otherwise have contact; and

• Any person with whom the child has lived for a period of at least three years17

The paramount consideration will be the welfare of the child18. ‘Lived with’ orders can be granted for two parents of the child, but a question arises as to whether three can be granted simultaneously. There is no case law in relation to this in England and Wales besides for stepparents, grandparents, guardians, or adoptive parents. In the US, three men were granted equal legal rights in relation to their children in 2017, with all three on their birth certificates19. The children were conceived via surrogacy following an eight-year polyamorous relationship. This scenario will become increasingly popular and it is worrying that no case law exists in England and Wales with regard to this issue.

Discrimination

Considering that there is no legislation specifically for polyamorous relationships, it is questionable as to whether this gives rise to discrimination.

The Equal Rights Act 2010 names protected characteristics in Part 2, namely: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Sexual orientation does not currently include polyamory20. Therefore, under section 13, direct discrimination does not relate to polyamory because it only covers the situation whereby A treats B less favourably than A treats or would treat others due to a protected characteristic. As the focus of this essay is on finances and children, further consideration of this topic is outside the scope of this essay.

Conclusion

With the increase in polyamorous relationships across the UK, and with recent prioritisation given to diversity and inclusion (e.g., LGBTQ+ rights), legislation must be proposed to protect these populations. One such example includes Arab populations wanting to retain their cultural background regarding multiple wives21. At present, vulnerable persons remain who cannot enter a marriage containing more than two persons in England and Wales and who experience relationship breakdown without access to suitable finances. Couples in cohabiting relationships are at least aware of the law on this issue as separation agreements and TOLATA provide a remedy. Those in polyamorous relationships containing both married and unmarried partners have no such guidance. The legislation proposed above devises a financial remedy for unmarried partners in a polyamorous relationship with married partners who have claims against their spouse. It also recommends a change of view in relation to allowing more than two people to be named on the child’s birth certificate and enabling more than two parents the right to a ‘lived with’ order in relation to the child. Given recent sociological trends

referenced in the introduction of this essay, the proposed legislation can protect an increasing percentage of the British population.

Children Act 1989).

18 Section 1(1) Children Act 1989

19 Will Pavia, ‘Children’s three fathers make a happy ‘throuple’’ [2021] The Times

20 Sungjin Park, ‘Sexual orientation

21 This is outside the scope of this essay.

PROPOSED REFORMS: NON-DISCLOSURE, MANDATORY ADR AND COSTS CAPPING?

Authored by: Michael Allum (Partner) – International Family Law Group

The announcement on 4 April 2023 that the Law Commission has launched a review into the laws which determine how finances are divided on divorce has intensified the debate as to whether s.25 of the Matrimonial Causes Act 1973 (“MCA”) should be reformed. There is a significant difference of opinion around the profession (including in the author’s firm) between those content for the existing law to continue and those supporting the reform process. This article is the author’s personal view and not reflective of the view of any business or organisation with which he is affiliated.

In WC v HC1 Mr Justice Peel provided a helpful synopsis of the current law. Given the word limit for this article the summary is not repeated here in full. It will suffice to say the following. The court undertakes a two-stage process namely computation and distribution. The objective is to achieve an outcome that is as fair as possible having regard to the s.25 factors.

The three essential principles are sharing, needs and compensation, although in practice the latter is very rare.

Pursuant to the sharing principle (1) marital assets are usually shared equally and (2) non-marital assets are not distributed, unless required to meet needs. The applicant will usually receive the greater of their entitlement on a sharing and needs basis. Needs is an elastic concept for which the

standard of living is relevant but not the loadstar. Most cases are decided on a needs basis. Absent duress, fraud, or misrepresentation a marital agreement freely entered into with a full appreciation of the implications should be upheld unless it would be unfair to do so. I would only add to this summary the equally famous exposition of the law on spousal maintenance contained in SS v NS2

It is respectfully submitted that this is not complicated. Once the court has concluded the computation process there is clear guidance as to how the available resources should be distributed. This does, however, rely

1 [2022] EWFC 22 (para 21)

2 [2014] EWHC 4183 (Fam) (para 46)

on obtaining an accurate picture as to the financial resources in a timely and efficient manner. That brings me on to the first suggested change: meaningful penalties for failure to give clear, frank, and honest disclosure.

As Mostyn J said in NG v SG3, nondisclosure is a plague on the financial remedy process. It generates huge costs, clogs up the court system and risks unfair outcomes. Despite a concerted move towards making costs orders where one party is guilty of litigation conduct, in practice the court is still often too soft when one party fails to give full disclosure. The court can draw adverse inferences but must be careful not to give the applicant more than they would have received had the respondent given full disclosure. Often the only risk to the guilty party is being penalised in costs which some litigants will see as a calculated risk worth taking when compared with the potential upside if the court fails to discover the true extent of their wealth or the applicant runs out of energy/ money to pursue a fair outcome. For a recent example of where one of the most blatant refusals to give full disclosure only resulted in a costs order see Tsvetkov and Khayrova4 where a costs order of £748,632 was made in the context of an overall award of £24,259,239. Is that likely to provide much disincentive? Probably not.

It is submitted that the courts should therefore be much tougher on nondisclosure. It is understandable that committal should remain a last resort, but why shouldn’t the court make a punitive financial order when faced with persistent and substantial nondisclosure. The court is required to take the conduct of the parties into account if it would be inequitable to disregard

it. Why should contempt of court in persistently failing to give full disclosure not fall within this category. It would serve as a disincentive to respondents who might otherwise hide assets and compensate the wronged party if they are put to the time, cost and stress of protracted proceedings seeking to establish the true financial position.

Once the computation stage has been completed, the court turns to distribution. In most cases this starts and ends with needs. Whilst any attempt to move towards a more rigid set of rules may increase certainty, the almost inevitable knock-on effect would be an increase in cases where the court is restricted from making an order that – given more flexibility – it would have made to achieve an outcome that it considers as fair as possible in all the circumstances of the case.

But do we really need a more rigid set of rules?

After all, in the vast majority of cases parties are already able to agree a settlement without the need for a court to impose a decision. This often involves a proportionate amount of involvement from specialist family lawyers who – once the computation state has been completed – are able to identify the range of likely outcomes and advise clients accordingly. What is needed is access to specialist advice. This brings me on to my second recommended reform: bring back properly funded legal aid.

Although not often seen by practitioners in the HNW sphere, most people getting divorced up and down the country have modest financial resources. Many simply cannot afford legal advice. It would be wrong to focus from our ivory towers exclusively on HNW cases without considering reforms which would help the majority of people getting divorced.

The difference a specialist lawyer could make, even by having just a couple of hours to help with each of: (1) the completion of the Form E; (2) reviewing the other party’s Form E and preparing a questionnaire; (3) drafting directions; and (4) advising as to the range of likely outcomes and drafting proposals for settlement, would be enormous. This could perhaps take the form of vouchers similar to those issued for mediation to enable solicitors to provide this advice but at properly funded rates.

There are of course some cases where the parties need more help. There is often a broad range of potential outcomes and finding the middle ground is not always easy. In these circumstances the default position, at least in Central London, has become to attend a private neutral evaluation (often referred to as a Private FDR). The range of benefits of Private FDRs are almost endless and well known to everyone practising in this area but include being able to select an evaluator with a particular specialism in the issues in the case, the evaluator having sufficient time to read the papers in advance and the evaluator being able to devote the whole day to assist the parties reach a settlement. The settlement rates are incredibly high. This brings me on to recommended change number three: give the courts the power to order parties to engage in ADR (including attending a Private FDR).

Back in our ivory towers it is easy to forget that most Private FDRs are still only undertaken in higher value money cases and often in London. Currently the court’s powers are limited to adjourning proceedings to enable the parties to obtain information about, and consider using, non-court dispute resolution5. The court only has the power to order parties to engage in non-court dispute resolution where the

parties agree6. In Mann v Mann7 Mostyn J suggested that the Family Procedure Rule Committee consider amending FPR 3.4(1)(b) to enable the court to direct parties to engage in non-court dispute resolution where one or both of them did not agree, but that change has not been made.

For a good example of where the court considered that the costs of the litigation were disproportionate to the issues between the parties and brought about a settlement by doing the best that it could – namely directing that the proceedings be adjourned to enable the parties to obtain information about and consider engaging in non-court dispute resolution – see the decision of Recorder Allen KC in WL v HL8

There will, of course, always be some case where it is not possible to reach a settlement and the court is required to make the decision for the parties. The majority of cases (usually not reported) up and down the country are conducted in a way that is reasonable and proportionate to the financial resources involved. For the few cases (which are more likely to be reported) which generate costs which are disproportionate, the court already has some power to address in the form of costs orders where one party incurs significantly more in legal fees than the other (see HHJ Hess in YC v ZC9 and DDJ Hodson in P v P10 where the court in effect added back the disparity in spending).

6 Rule 3.4(1)(b) Family Procedure Rules 2010

7 [2014] 2 FLR 928

8 [2021] EWFC B10

9 [2022] EWFC 137

10 [2022] EWFC 158

11 [2022] EWFC 2

12 [2000] UKHL 54

13 [2010] UKSC 54

For cases where both parties seem intent on incurring unreasonable costs that are disproportionate to the issues involved, the court should have the power to cap the costs the parties are allowed to incur during various stages of the proceedings. For an example of where the courts endorsed costs capping in respect of experts’ fees see Loggie v Loggie11 where Mostyn J held that the court should be asked to place a cap on the fees of experts being jointly instructed pursuant to FPR 25.12(5) on the basis the expert could apply for the order imposing a cap on the fees to be varied in the event circumstances change and further work is required.

I am not suggesting that costs should be capped in every case. In the vast majority the parties and lawyers can be trusted to resolve disputes in a way that is reasonable and proportionate to the issues involved. But in the minority of cases – frankly often in London in the HNW sphere – where the costs being incurred are completely disproportionate, I suggest the family court should have power to cap the costs one or both parties is able to incur as part of their case management powers.

It should also be borne in mind that substantive reform risks causing – at least in the short to medium term – all the uncertain, litigation and costs it is hoped they will avoid.

We all know, for example, how long it took the profession to work out what the Lord of Lords meant by the yardstick of equality following White v White12 and what the Supreme Court intended when it said that a marital agreement should be upheld unless it would be “unfair” to do so in Radmacher v Granatino13. The same wave of litigation would be likely again if s.25 MCA 1973 is overhauled.

The above examples are not intended as an exhaustive list of potential reforms. There will certainly be many other helpful reforms and blue sky thinking and discussion is required within the profession. Although codification is not in itself a justification for reform it would certainly be helpful if a summary of the law was made more readily accessible for the public. If this could incorporate data from the revised D81 that would be helpful. But it is submitted that a more robust approach to ensure full disclosure, the reintroduction of properly funded legal aid, the ability to require the parties to attend a Private FDR and costs capping in appropriate cases would make a much greater impact than wholesale reform of s.25 MCA 1973.

CHAT GPT – HOW COULD IT REFORM OUR LAW ON MATRIMONIAL FINANCE?

Authored by Yasmin Khan-Gunns (Associate) – Keystone Law

The reform of matrimonial finance in England & Wales has long been subject to debates, from discretionary powers granted to judges to quantifying spousal maintenance.1 This essay shifts the lens to a broader perspective, focusing on the integration of technology and artificial intelligence (AI). By leveraging cutting-edge tech and the capabilities of AI, we can provide more accessible information, more efficient processes,

and more consistent and predictable outcomes. This essay will delve into four AI-driven ideas that have the potential to reshape family law within our borders and beyond.

Idea 1 – Predictive analytics for financial settlement outcomes

The Problem

The discretionary system in family law poses difficulties for family solicitors and barristers (Professionals) and lay individuals (LIs) when predicting case outcomes. This contributes to prolonged disputes, excessive legal costs, and added pressure on the court system.

Technological Reform

An AI-driven platform, which extracts and analyses outcomes of financial remedy cases across England & Wales.

Implementation

1. HMCTS Initiative: HMCTS initiates an AI platform accessible via a dedicated court site.

2. Data Input: After every successful FDR, Final Hearing or Consent Order (lodged through the portal or otherwise), court staff would input headline facts and figures to a court database along with the financial outcome. Forms D81, ES1 and ES2 could be uploaded to save time.

3. AI Date Extraction: Advanced AI software extracts and evaluates database information, updating the platform with real-time data.

4. User Input: Users input case specifics, including ages, children, income and asset details.

5. Instant Results: Users click a button ‘Find a case similar to mine’ to view anonymised cases and

6. Further Analysis: With enough funding, another button could estimate a user’s likely financial outcome.

Funding is essential for this AI integration. The need for staff assistance will vary based on the AI sophistication.

Comments

This extraction, analysis, and predictive AI tool would offer valuable insights, potentially facilitating earlier settlements and easing the burden on the courts.

IAFL French Lawyer

Alexandre Boiché acknowledges the advantages of AI here, noting it would ‘make the current decisions of our [French] court probably more predictable’, which he likens to ‘Russian roulette’2

IAFL Canadian Family Lawyer

Alexandra Carr and Associate Karen Jia confirm that AI is already in use in Canada; the software DivorceMate is ‘widely used in calculating the proper equalization payment, child support and spousal support’3. Whereas IAFL Japanese Family Lawyer Hirotaka Honda questions the necessity of AI, remarking: ‘There may be no room to use AI in a meaningful way, as [the] rule on how to divide assets is very simple [in Japan]’4.

Considering the challenges, IAFL Texan Family Lawyer Jim Mueller ponders how AI might determine a ‘just and right division’. He raises concerns about AI’s ability to consider factors like ‘attitude, abuse and personalities (of Judge and witnesses)’5. Similarly, Boiché expresses doubt about AI’s ability to generate ‘outside the box’ solutions in complex cases.6 Meanwhile, IAFL Chinese Family Lawyer Ryan Tang highlights difficulties in cases where full financial disclosure is lacking, especially

when ‘one party is not able to track the property/assets of the other party’7 While the AI system might encounter issues in these instances, it is designed to offer direction, rather than absolute answers, and could be extremely helpful in standard cases.

The President of the Family Division referenced a similar idea to the one proposed above, using Form D81 data to produce ‘schedules or tables identifying the preponderant outcome in typical cases’8. He calls it a ‘potentially game-changing endeavour’9. Perhaps this is what we need – a game changer, not Russian roulette.

Idea 2 – Real-time information access for LIs and Professionals

The Problem

Professionals and LIs find it frustrating and time-consuming to be kept on hold for extended periods when seeking basic information from the Court.

Technological Reform

An AI-driven chatbot, trained to interact with users via natural language dialogue, could immediately address FAQs and give real-time updates on financial remedy proceedings.

Implementation

1. HMCTS Initiative: HMCTS creates an AI platform, accessible via a website or phone app.

2. Live Data Input: Admin staff and court clerks update a court database daily, or perhaps bidaily. This includes:

• Application processing times, e.g. ‘Birmingham Family Court’s nonurgent application: 6 weeks.’

• Email response times, e.g. ‘Manchester Family Court’s general inquiries: 2 business days.’

• Next available trial dates, e.g. ‘Central Family Court’s next 4-day trial: 19 Feb 2024.’

• Consent Orders processing, e.g. ‘Leeds Combined Court final Consent Orders: 4 weeks.’

• Interpreter bookings, e.g. ‘Polish interpreters at Liverpool Family Court: fully booked for 2 weeks.’

• Judge engagements, e.g. ‘District Judge Smith engaged in court since 10am; afternoon delays likely.’

2 Interview with Alexandre Boiché, Family Lawyer, Alexandre Boiché Paris Avocats in France, Fellow of the International Academy of Family Lawyers (email, 29 July 2023).

3 Interview with Alexandra Carr, Family Lawyer, Lenkinski, Hooper & Carr LLP in Canada, Fellow of the International Academy of Family Lawyers (email, 9 August 2023).

4 Interview with Hirotaka Honda, Family Lawyer, Honda Law Office in Japan, Fellow of the International Academy of Family Lawyers (email, 31 July 2023).

5 Interview with Jim Mueller, Family Lawyer, Verner Brumley Mueller Parker P.C. in Texas, USA, Fellow of the International Academy of Family Lawyers (email, 28 July 2023).

6 Interview with Alexandre Boiché (n 2).

7 Interview with Ryan Tang, Family Lawyer, AllBright Law Offices in China, Fellow of the International Academy of Family Lawyers (email, 31 July 2023).

8 Sir Andrew McFarlane, ‘Living in Interesting Times’ (Resolution Conference 2019 Key Note Address, April 2019) <chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https:// www.judiciary.uk/wp-content/uploads/2019/04/Resolution-Key-Note-2019-final.docx-8-APRIL-2019.pdf> page 11 accessed 10 August 2023.

9 ibid.

• Case positions on daily lists, e.g. ‘Your case is second for District Judge Smith at Birmingham today.’

3. AI Data Extraction: AI software updates the platform with the latest data.

4. AI Chatbot Interface: Users engage an AI Chatbot on the website/app for instant responses.

Comments

The AI Chatbot immediately provides answers, saves time, and helps users to prepare effectively. While some features, such as live judge updates, might be omitted due to time and funding constraints, the platform would be hugely valuable in providing swift information in several areas, reserving court phone lines for urgent issues.

IAFL Hong Kong Family Lawyer Winnie Chow mentions discussions among practitioners in Hong Kong about AI’s

utility in addressing questions like, ‘what are the forms I need to fill out,

what is the time frame for a specific hearing, how do I go about arranging for an interpreter, can my friend come to court with me’. Winnie believes such information would offer ‘great assistance’ to LIs, and would ‘ease the burden of the family court’10. Mueller also views this idea as ‘extremely helpful’11, but Boiché considers it ‘very impersonal’12. One might wonder: is speaking with often tired court staff managing numerous calls daily genuinely more personal?

Idea 3 – AI-powered Chatbot for Family Law Guidance

The Problem

Many LIs cannot afford legal advice and have limited knowledge of their matrimonial rights and processes. This can contribute to lengthy negotiations, unfair consent orders, informal agreements that cause future problems, and LIs commencing court proceedings without considering ADR.

Technological Reform

An accessible AI Chatbot, akin to ChatGPT4, could be integrated into the HMCTS website. This would provide LIs with a platform to obtain quick answers on matrimonial finances, drawing from existing information on the HMCTS website and other reputable sources.

Implementation

1. HMCTS Initiative: HMCTS creates a chatbot on its website dedicated to addressing queries on matrimonial finance.

2. User Interaction: Lis ask questions; the chatbot responds instantly.

3. Disclaimer: The chatbot emphasises that it is not a replacement for legal advice, urging users to consult with a Professional.

Comments

Introducing a chatbot on the HMCTS website could be transformative for LIs. Though Mueller expresses reservations, noting ‘we already have enough clients who are Google attorneys’13 , it is important to differentiate this chatbot from typical search engines. This chatbot provides specific and custom-tailored answers, reflecting its specialised training. The Master of the Rolls stresses this distinction, remarking: ‘Since the AI has access to more and different data than the humans, its opinion would at least be worth taking into consideration’14. Family Lawyer Oluwapelumi Amanda Adeola considers this system as ‘smarter and perhaps more efficient for LIP’, adding, ‘the information is already there and it is just directing LIPs straight to the answer’15.

10 Interview with Winnie Chow, Family Lawyer, CRB in Hong Kong, Fellow of the International Academy of Family Lawyers (email, 23 August 2023).

11 Interview with Jim Mueller (n 5).

12 Interview with Alexandre Boiché (n 2).

13 Interview with Jim Mueller (n 5).

14 The Master of the Rolls, ‘Bar Council of England and Wales 20th Annual Law Reform Lecture Lincolns Inn’ (Courts and Tribunals Judiciary, 21 June 2023) <https://www.judiciary.uk/ speech-by-the-master-of-the-rolls-to-the-bar-council-of-england-and-wales/> accessed 2 August 2023.

15 Interview with Oluwapelumi Amanda Adeola, Family Lawyer, BHP Law in England, (email, 15 August 2023).

Idea 4 – Assisting Professionals in their day-to-day work

The Problem

Despite rapid advances in AI technology, many Professionals are reluctant to integrate AI into their daily routines. This reluctance may stem from a lack of understanding or training, or from fears about how it might diminish their perceived value.

Technological Reform

Goldman Sachs has indicated that AI could automate up to 44% of legal tasks in the U.S.16 The Master of the Rolls commented: ‘It is hard to see why it should be different here in the UK’17. AI has vast potential in family law, from drafting standard communications and proofreading to researching case law. Even in marketing & business development, AI can craft articles, conduct SEO research, and create compelling promotional campaigns.

Implementation

The creation of a sophisticated chatbot that taps into an array of family law resources, including the Red Book, Practical Law and Westlaw. Professionals could request a myriad of tasks, such as:

‘Draft a letter to a husband explaining our divorce application. Outline the process and the need for Forms E exchange in 28 days.’

‘Draft a letter to my client on handling an unexpected visit from her abusive spouse.’

‘My client is against getting a pension report on divorce. Draft a disclaimer.’

‘Provide a list of barristers in London specialising in international relocations.’

‘Guide me on which application to

make for [ ] and the procedure.’

‘Compose a 500-word blog on [ ].’

‘How can I improve my website? What matrimonial finance FAQs are frequently Googled?’

Adeola recognises the efficiency benefits of this idea but expresses concerns. She points out that many of the above tasks are carried out by junior professionals or aspiring entrants. Introducing AI could make these positions redundant, creating ‘a further bar to entry’18

2. The development of an AI system that quickly and accurately sorts and analyses vast amounts of financial disclosure, summarising the content and flagging unusual transactions.

IAFL Californian Family Lawyer Rod Firoozye remarks that AI could be ‘very helpful’ here, but stresses that ‘there has been some major push back to regulate AI in legal matters in CA’.19

IAFL Australian Family Lawyer Keleigh Robinson comments: ‘we are considering our options for ways to use AI in terms of automated reviews of discovery (disclosure)’20. She recently attended a seminar by eBrief Ready,21 an AI legal platform that ‘harnesses the capabilities of AI to automate and systemise document collection and categorisation and disclosure in family law matters’22. IAFL New York Family Lawyer Christopher Mattingly agreed that ‘AI could be useful in discovery in complicated financial cases’ and ‘is here to stay … evolving rapidly’23 but like Firoozye, noted ‘New York is generally very slow to embrace change’.24

3. The creation of an AI platform that is integrated with standardised financial remedy orders, crafting custom consent orders for Professionals and LIs.

IAFL Australian Family Lawyer Damien Greer highlighted a similar AI service in Australia named ‘Amica’.25 It aids couples in resolving parenting, property, and financial issues, designed so ‘parties can run through to final orders without real engagement with lawyers, as long as there is no conflict’.26

Comments

In England & Wales, technology and AI are already transforming family law, as seen with platforms like OurFamilyWizard and their ToneMeter function27. The journey shouldn’t end here. For AI to reach its full potential, Professionals must see it as a complementary tool, not a substitute.

To implement the above reforms, policymakers and HMCTS will need to pilot programs, allocate resources, partner with tech firms, maintain data protection, set ethical standards and much more. While the undertaking is immense, the Master of the Rolls aptly pointed out that ‘none of these risks means that we should forsake new technologies and the benefits they bring’.28 Instead, Professionals owe a duty to clients to ‘make constructive use of whatever technology is available if it helps to provide a better, quicker and more cost effective service to clients’, and judges owe a duty ‘to provide a better, quicker and more cost effective dispute resolution process if you are a judge’.29 I agree.

16 Steve Lohr, ‘A.I. Is Coming for Lawyers, Again’ (The New York Times, 10 April 2023) <https://www.nytimes.com/2023/04/10/technology/ai-is-coming-for-lawyers-again.html> accessed 16 August 2023.

17 The Master of the Rolls (n 13).

18 Interview with Oluwapelumi Amanda Adeola (n 14).

19 Interview with Rod Firoozye, Family Lawyer, Law Offices of Rod Firoozye in California, USA, Fellow of the International Academy of Family Lawyers (email, 27 July 2023).

20 Interview with Keleigh Robinson, Family Lawyer, Carew Counsel Solicitors in Australia, Fellow of the International Academy of Family Lawyers (email, 28 July 2023).

21 Behind the Technology’ (eBrief Ready) <https://www.ebriefready.com.au/> accessed 16 August 2023.

22 Interview with Keleigh Robinson (n 19).

23 Interview with Christopher Mattingly, Family Lawyer, Mattingly Cavagnaro LLP in New York, USA, Fellow of the International Academy of Family Lawyers (email, 29 July 2023).

24 ibid.

25 ‘Helping you to separate smarter’ (Amica) <https://amica.gov.au/?gclid=CjwKCAjw5_GmBhBIEiwA5QSMxPFXLZZtRHwCM8sdfv4f-YooClIY4NMgk5MARgpGXwS2kzCxJc_ WhBoCqe8QAvD_BwE> accessed 16 August 2023.

26 Interview with Damien Greer, Family Lawyer, Damien Greer Lawyers in Australia, Fellow of the International Academy of Family Lawyers (email, 28 July 2023).

27 ‘Keeping the whole family in the loop’ (OurFamilyWizard) <https://www.ourfamilywizard.co.uk/families> accessed 16 August 2023.

28 The Master of the Rolls (n 13).

29 The Master of the Rolls (n 13).