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Home > Articles > 2012 archive

Finance & Divorce October 2012 Update

Anna Heenan and Nicola Rowlings, both of Mills & Reeve LLP, analyse September’s financial remedies and divorce news and cases.













Anna Heenan and Nicola Rowlings both of Mills & Reeve LLP

This update is divided into two parts: News in Brief and Case Law Update.

News in brief
This section of the update highlights some of the news items that will be of particular interest to practitioners who advise on divorce and financial remedy cases.

Chancellor's Autumn Statement to be delivered on 5 December 2012 at 12.30pm
The statement will provide an update on the Government's plans for the economy.

The forecasts from the Office for Budget Responsibility will be published alongside the Autumn Statement.

For more information, click here.


House of Commons Library Standard Note discusses "no fault" divorce under the Family Law Act 1996 Pt 2
The note explains the provisions of the Family Law Act 1996 Pt 2, which was never brought into force.

On 3 September 2012 the Government published draft legislation on Family Justice for pre-legislative scrutiny which would, amongst other things, repeal the provisions of the Family Law Act 1996, Pt 2 which have not already been brought into force.

To access the note, click here


Legal ombudsman publishes decisions online
The legal ombudsman has published an online list of ombudsman decisions on complaints about lawyers. The list was first published on 17 September and will be updated on a quarterly basis.

The website includes an alphabetical list of firms or lawyers where a decision has been made, a total number of decisions in respect of each firm and a total number of cases in which a remedy was required. It also includes case summaries of ombudsman decisions.

For the full story, click here.


Welsh charity criticises police and local authority support for forced marriage victims
Wales Online reports that charities have criticised police and local authorities in Wales for not doing enough to encourage the victims of forced marriage to come forward.

The article also reports that a Freedom of Information request submitted by Wales on Sunday found that only two people contacted Dyfed Powys Police for help in three years.

For more information, click here.


UCLA study suggests that pre-wedding doubts are often a sign of trouble ahead
Psychologists at the University of California, Los Angeles report that women who have doubts before their marriage are two and a half times more likely to divorce within four years than wives without those doubts. They also reported that amongst couples who were still married after four years, husbands and wives who had pre-marital doubts were less satisfied with their marriage than those that did not.

Whilst women were less likely to have doubts than men, women's doubts were a better indicator of trouble ahead.

For the full story, click here.


Law Commission launches supplemental consultation on "Matrimonial Property, Needs and Agreements"
The new consultation paper follows on from the Law Commission's consultation paper on "Marital Property Agreements" in January 2011. The two issues now under consideration by the Law Commission are:

(1) the law relating to financial needs on divorce and dissolution; and
(2) the legal status of "non-matrimonial property".

In relation to financial needs, the consultation seeks to recommend a fundamental and principled reform of the law. It considers that the law is lacking an objective to tell the courts and parties what is to be paid and why. The consultation also considers whether the current discretionary system should be replaced by a formula.

In relation to matrimonial property, the consultation asks questions about:

(1) the definition of non-matrimonial property;
(2) whether there should be a rule that it is not shared;
(3) whether that rule should be subject to the further rule that it must be shared if it is required to meet needs; and
(4) whether non-matrimonial property can ever become matrimonial, either by the passage of time or because it has been sold and replaced or has appreciated in value as a result of investment or management by either party.

For the full story, click here.


House of Commons Library Standard Note discusses Financial Provision Orders on the Breakdown of a Relationship
The note discusses the current law, the proposals for change and the Law Commission consultation.

For further information, click here.


Judge criticises divorcing lawyers who spent most of their fortune on legal fees
The Telegraph reports on the divorce of two solicitors who have been left with just £90,000 between them after paying their legal fees.

The couple's combined costs are said to be in the region of £1.7m, around £500,000 of which were spent on Children Act proceedings.

For the full story, click here. (External link) 


Case law update
This section of the update deals with cases concerning the marriage of a woman with severe learning difficulties, the validity of a marriage under Family Law Act 1986, s 55(a) and reporting restrictions in financial remedy cases.

XCC v AA & Anor [2012] EWHC 2183 (COP) (Parker J) 26 July 2012
This Court of Protection case considered whether the marriage of a woman with severe learning difficulties should be brought to an end.

Background
DD had a very significant degree of learning disability, little language, little comprehension of anything other than very simple matters and needed assistance with almost all aspects of her daily life. Her parents were from Bangladesh but the family had been brought up in Britain and were all British citizens.

DD married AA (said to be her cousin) in 2003 in Bangladesh. AA eventually gained a spousal visa in 2009 and moved in with DD and her parents, sharing DD's bedroom and bed. DD's marriage came to the attention of the learning disabilities team of XCC, leading to concerns about her welfare. The police obtained a Forced Marriage Protection Order pending an application by XCC to the Court of Protection.

A court order in 2010 prevented AA from living with DD or having any contact with her.

Declarations made at the 2010 hearing

i. DD lacks the capacity to marry.
ii. DD lacked the capacity to marry in 2003 when the marriage ceremony took place in Bangladesh.
iii. DD lacks the capacity to consent to sexual relations.
iv. DD lacks capacity to make decisions as to where she should live.
v. DD lacks capacity to make decisions regarding her care.
vi. DD lacks capacity to make decisions regarding with whom she should or should not have contact.
vii. It is unlawful for AA or any other person to engage in sexual activity with DD (including sexual touching).
viii. It is at the present time in DD's interests to reside with her parents.
ix. It is not in DD's interests to reside with AA.
x. It is not in DD's interests that AA should provide her with care.
xi. It is not in DD's interests to have contact with AA.
xii. From 2003 it was unlawful for AA to engage in sexual activity (including sexual touching), and it continues to be unlawful for AA to engage in sexual activity (including sexual touching) with DD.

It was noted that the family were "bewildered and disconcerted" that they were seen to have done anything wrong. DD's parents considered it their duty to arrange for DD to be married so that she could be provided for when they were unable to do so.

The status of the marriage
In earlier hearings, all parties had argued that the marriage should not be annulled and no declaration should be made that DD lacked capacity. It was said that it would bring shame on DD and her family if the community believed she had had sexual relations as an unmarried woman. Parker J had considered that any effect on DD would be indirect; arising from the feelings of her family. Parker J had also noted that the Bangladeshi marriage would remain valid.

After the Attorney-General became involved in the proceedings, and supported the making of a declaration of non-recognition in relation to the marriage, all parties except AA accepted that a declaration of non-recognition should be made.

The Official Solicitor (acting as DD's litigation friend) sought a ruling as to the basis upon which the declaration should be pronounced.

Jurisdiction to make a declaration of non-recognition
Parker J held that DD did not have even the most basic understanding of the marriage. She played very little part in the wedding ceremony, needed considerable prompting even to repeat the words of consent to the ceremony and did not understand them. DD had no capacity to consent to sexual relations on any basis and if sexual relations took place they would be bewildering, frightening and probably painful. DD was unlikely to be able to sustain a pregnancy, it would be very high risk and would cause her considerable physical and mental suffering. Parker J also concluded that AA would want to be married to a woman with whom he could have a full marital life and a family.

It was held that marriage with an incapacitated person who is unable to consent is a forced marriage within the meaning of the Forced Marriage Act 2007. Parker J then considered what jurisdiction there was to make a declaration of non-recognition. She considered the Mental Capacity Act 2005 (MCA 2005) and concluded:

"I could, I think, make a declaration pursuant to the MCA 2005 that it is unlawful for DD to be married in this jurisdiction. I do not think that I could make a declaration that it was or is unlawful for her to be married in Bangladesh. But even if I am wrong about this, there is no jurisdiction within the MCA 2005 to make a non-recognition declaration in respect of the marriage: it is not a personal welfare decision."

Parker J was, however, satisfied that she had jurisdiction to make a non-recognition declaration under the inherent jurisdiction of the High Court.

On what grounds can a declaration be made / should a declaration not be made?

The Official Solicitor argued that it would only be lawful to make a declaration on welfare grounds and that public policy was irrelevant. Parker J concluded that she was entitled to grant a non-recognition declaration on the specific ground that DD's consent had not been given, irrespective of capacity. "That is not a welfare or best interests decision."

Parker J accepted that welfare might be relevant to the decision not to grant a declaration of non-recognition. She considered it a "remarkable feature" of the case that the presentation of DD's interests by those who had a duty to protect her welfare had focused on the impact on DD of the wishes and feelings of her family.  Parker J recognised that cultural considerations existed but these could not be "allowed to dictate or even affect my decision". Since the issue of capacity to consent had already been determined, the wishes of the parties could not be relevant.

On the issue of the shame and stigma that would be caused to the family by a divorce or annulment, Parker J did not see why a declaration that the marriage was not recognised in the UK would undermine the fact that DD underwent a marriage in Bangladesh. In any event, these concerns must be subject to the recognition of the rights and protection of DD, and to public policy considerations.

Parker J did not accept that DD's hypothetical decision if she had capacity was relevant.

Public policy considerations were relevant. To force a marriage on an incapacitous person was "a gross interference with his or her autonomy." Marriage creates a status which has various consequences, including some affecting third parties and the public at large. Therefore questions of public policy were generally relevant, as well as relevant to the person concerned. There was also a public policy interest in the Court stating openly that such a marriage should not be recognised.

It had been apparent during the hearing that AA regarded the continuation of the marriage as important in securing his own immigration status. Parker J commented that:

"The most important aspect of the immigration aspect of this case is that this non-consensual, forced marriage has been created in order to further the interests of others and not DD. That is a clear public policy consideration that affects DD. DD would not have been married to AA had he not wanted to come to England to live and work."

Various assurances and undertakings had been given by AA and DD's family that AA would not have any contact with DD and that he would not seek to exercise in any way any function conferred on him in his status as DD's husband. However, Parker J considered that it was necessary and proportionate for her to grant a non-recognition declaration. The undertakings did not provide absolute protection for DD. A breach of an undertaking might go undetected and there were some suspicions that AA had been allowed into DD's home since the initial ruling was given. AA's status as DD's husband might also affect third parties and it would doubtful whether he could effectively "contract out" of it.

How should the marriage be ended?
Parker J considered whether the Court could make a declaration of non-recognition of its own motion. Once a matter was before the Court of Protection, the High Court could make orders of its own motion, particularly if such order was ancillary to orders made on application.

Parker J noted that a declaration of non-recognition performed a wider function than a nullity decree as it extended to the whole duration of the marriage. It was held that the marriage was disadvantageous to DD in a number of ways. For example, it had exposed her to danger and had lead to family conflict with XCC about the provision of care services. There were overwhelmingly strong public policy and welfare grounds not to recognise the marriage and the Court declared that it was not recognised as a valid marriage in this jurisdiction.

Nullity was adjunctive to a declaration of non-recognition, rather than an alternative to it. Although more than three years had passed since the date of the marriage, DD might be given leave to bring nullity proceedings on the basis that she had at some point during that period suffered from a mental disorder. It was held to be in DD's best interests for nullity proceedings to be instituted by the Official Solicitor. The Court could not institute those proceedings itself.

The failures to spot the risk to DD earlier
XCC accepted there had been failures in its handling of matters. However, Parker J noted that DD's parents had not seen a problem in DD's marriage and neither, apparently, did the family GP whose advice had been sought on at least three occasions about marriage and pregnancy for DD. Parker J added a postscript to her judgment setting out the duties of professionals in cases of non-capacitous marriages.

MA and JA v Her Majesty's Attorney General [2012] EWHC 2219 (Fam) (Moylan J) 27 July 2012
This case considered an application for a declaration that a marriage was valid under Family Law Act 1986, s 55(a).

Background
The parties married at the Middleborough Abubakr Mosque and Islamic Cultural Centre ("the Mosque") on 15 August 2002. The Petitioner made the arrangements for the marriage. He did not know about the formal requirements of the Marriage Act 1949 ("the 1949 Act") and the only enquiries he made were in discussing matters with the Chairman of the Mosque.

The Mosque was registered for the solemnisation of marriages under the 1949 Act, s 41. The ceremony was conducted by an Imam (who was not, at that stage, an authorised person) in the presence of the Chairman (who was an authorised person). After the ceremony the Respondent asked the Imam whether the parties were married or not and whether there was anything else they needed to do. The Imam told them that they were married and there was nothing further they needed to do. The parties signed a register book and were provided with a "Contract of Marriage" signed by the Imam.

Moylan J was satisfied that the parties intended to contract a marriage which was valid under English law and believed that the ceremony in the Mosque achieved this.

The Imam was not an authorised person until February 2003 and he said that after that time his practice changed. At the time of the parties' ceremony he did not discuss with the parties whether they wanted a religious marriage only or a civil ceremony too. The Imam believed he was only performing a religious ceremony. He knew the requirements of a civil ceremony but did not discuss them with the parties.

The parties lived as a married couple following the ceremony. They became aware that there might be problems with their marriage after attending other weddings. The Respondent went to the Register Office to try and obtain a marriage certificate and was told the parties' marriage was not registered.

The Petitioner, supported by the Respondent, sought a declaration under the Family Law Act 1986, s 55(a) that the marriage was a valid marriage at its inception. The Attorney General, who intervened, argued that the ceremony was of no effect under English law and resulted in a "non-marriage."

The case raised the issue of when a ceremony conducted in England and Wales which does not comply with the requirements of the 1949 Act:

(a) results in a either a valid marriage or a void marriage;
(b) is a non-marriage.

The parties' positions
The Petitioner and Respondent relied on the presumption of marriage arising from both cohabitation and reputation and from a ceremony of marriage followed by cohabitation, and on the meaning and effect of Matrimonial Causes Act 1973, s 11 (which sets out the grounds on which a marriage is void).

The 1949 Act only dealt with the situation where a marriage was void because the parties have "knowingly and willingly" married in disregard of certain provisions of the Act. The 1949 Act does not stipulate which of the requirements of the Act have to be fulfilled for the marriage to be within the scope of the Act. The parties argued that the character of this marriage was "of the kind contemplated by the Act". The ceremony purported to be a lawful marriage, it bore enough of the hallmarks of marriage and the parties intended it be a valid marriage. The ceremony took place in a registered building and in the presence of an authorised person (the Chairman of the Mosque).

The Attorney-General argued that this was a non-marriage and that the evidence rebutted any presumption of marriage. It was argued that public policy required strict application of the rules governing the formation of marriage and to circumvent them here would cause confusion and uncertainty where certainty was in the public interest.

The law
Moylan J considered the provisions of the 1949 Act and noted that there was a heavy obligation on the person conducting the marriage to do so in accordance with the requirements of the Act.

The judge then considered the authorities dealing with a presumption in favour of marriage. In particular, he referred to the cases of Mahadervan v Mahadervan [1964] P 233 where it was said that:

" …Two rules of law expressed in Latin maxims therefore come into play: omnia praesumuntur rite esse acta as regard the acts of the officials and omnia praesumuntur pro matrimonio. Where there is a ceremony followed by cohabitation as husband and wife, a strong presumption arises that the parties are lawfully married."

Moylan J noted that Rayden and Jackson on Divorce Matters, 18th Edn referred to a presumption "from cohabitation and reputation". He commented that the Scottish presumption to like effect had been abolished and that the presumption was not relied upon in this case.

Moylan J then moved on to consider the presumption "from ceremony followed by cohabitation" which was considered in the case of Chief Adjudication Officer v Bath [2000] 1 FLR 8 where it was held:

"These authorities show that when a man and a woman have cohabited as man and wife for a significant period there is a strong presumption that they have agreed to do so, in proper form … the presumption operates to show that the proper form was observed and it can only be displaced by … positive not merely 'clear' evidence … How positive and how clear must depend among other things upon the strength of the evidence which gives rise to the presumption – primarily, the length of cohabitation and evidence that the parties regarded themselves and were treated by others as man and wife."

It was noted that Mr Justice Bodey also had considered the presumption of marriage in Al-Saedy v Musawi (Presumption of Marriage) [2011] 2 FLR 287.  Bodey J had concluded that there was no place for the application of the presumption where the parties could not reasonably have thought that the ceremony satisfied the necessary formalities of an English marriage.  Moylan J also pointed to the fact that Bodey J had applied dicta from Chief Adjudication Officer v Bath [2000] that, where the statutory requirements have been shown or admitted not to have been complied with, the presumption of marriage cannot be relied upon to establish that they were. 

Finally, Moylan J reviewed the authorities on the topic of non-marriages.

Conclusion
Moylan J concluded that the presumption of marriage could not apply in this case. The evidence clearly established that some of the requirements of the 1949 Act were not fulfilled and so the presumption could not be relied upon to establish that they were. Therefore, Moylan J went on to consider the parties' alternative submission that the ceremony was "of the kind contemplated by the Act" and so created a potentially valid marriage.

The judge agreed with Bodey J in Hudson v Leigh [2009] 2 FLR 1129 that it was sensible not to try and set out a definitive test for a non-marriage. Moylan J considered the question of what brings a ceremony within the scope of the 1949 Act. He noted that there were public policy reasons against casting the net too widely or too narrowly and concluded "the answer to the question of when a ceremony in England is not wholly outside the provisions of the 1949 Act and will accordingly create a potentially valid marriage should be determined by reference to the provisions of the 1949 Act applied in a manner which is consistent with the principles summarised by Omrod J in [Collett v Collett [1968] P 482] and taking into the factors referred to by Bodey J in Hudson v Leigh."

The marriage in this case was held to be valid. The ceremony was sufficient "as a ceremony". It was clearly a ceremony of marriage and it was made clear that the parties were taking one another as husband and wife. The essential elements under the 1949 Act are the place of the ceremony and the presence of a designated official and these elements have been sufficient to justify the application of a presumption in favour of marriage. Here the marriage was solemnised in a registered building and in the presence of an authorised person. Whilst the parties failed to give notice to the superintendent registrar and there was no certificate, there was no statutory provision which rendered the marriage void unless there was deliberate non-compliance. The same thing was true of the failure to publish banns or obtain a licence.


A v A [2012] (DJ Bradley)
This case considered the application of reporting restrictions to financial remedy proceedings.

The final hearing of the financial remedy application took place in January 2012 and was attended by accredited media representatives. The husband unsuccessfully sought to have the media excluded but a temporary reporting restriction order was granted. Judgment was reserved until March and the parties reached a settlement 10 minutes before judgment was due to be given. However, Times Newspapers Limited sought to report the evidence given in the financial remedy hearing.

The wife adopted a neutral position on the issue of reporting. The husband and the husband's parents were against reporting. The husband's father was particularly concerned about the embarrassment it would cause to him and others; he feared the impact on his career and a possible risk to his life.

The legal principles
The district judge considered that the starting point was the principle of open justice, a common law principle emphasised in Clibbery v Allan [2002] 1 FLR 565 which applied equally to the family court. The principle of open justice was reinforced by Article 6 of the European Convention on Human Rights.

The district judge noted that The Administration of Justice Act 1960, s 12 set out the circumstances in which it would be a contempt of court to publish information in private proceedings. However, this was not exhaustive and there were situations outside s 12 which required confidentiality. The best-known of these was the implied undertaking in the compulsory disclosure of documents in proceedings.

The district judge considered various authorities but noted that none of them were considered with proceedings conducted in private in accordance with FPR 2010, rule 27.10.  He commented that:

"The fact that proceedings are held in private does not of itself mean that they cannot be reported, however the Court of Appeal in Clibbery v Allan has provided clear support for the implied undertaking as to confidentiality that is created when disclosure by a party is given under compulsion. That confidentiality is preserved until the information is put into the public domain. It appears to be suggested…. that because of the wide ranging nature of the areas of full and frank disclosure required by statute in…. financial remedy, proceedings, virtually every item of information given by a party can be regarded as subject to the implied undertaking as to confidentiality because, under s 25 of the Matrimonial Causes Act 1973, the parties are required to give full information to enable the Court to consider each sub-section of s.25(2)."

There was no judgment to report here and no findings by the court. "The ability of the Media to attend the hearing stems from the principle of open justice, which promotes the rule of law and public confidence in the legal system. Their presence alone does not mean that confidential information is brought into the public domain." The district judge noted from the December 2008 Response to the Consultation CP(R) 10/07 "Family Justice in View" that the government was concerned with protecting children and families from publicity but that it also wanted to raise public understanding of how the courts worked to try and reassure the public.

The district judge considered the European Convention on Human Rights, which reinforced many of the common law principles. In particular he referred to Article 6 (the right to a fair and public hearing), Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression). In this case there was a conflict between the right of the media to freedom of expression and the right of those involved in the matrimonial proceedings to respect for their private lives.

The district judge noted that The Judicial Proceedings (Regulation of Reports) Act contained a restriction in respect of proceedings concerning marriage on the particulars that can be disclosed but that there was no firm, binding decision as to whether the Act applied to financial remedy proceedings. Therefore, his decision was based on Articles 6, 8 and 10 ECHR and guided by the authorities.

The judge's decision
The media had expressed interest in what was described as a "cosy financial arrangement" and also in the husband's business enterprise. In respect of the "cosy financial arrangement", the evidence was all given under compulsion. The husband and his father were both clearly anxious about the implications of the disclosure and neither of them had any desire "to bring to public attention the personal, private arrangements of an unconnected individual." Reporting of this aspect would not enhance the public understanding of the family justice system and it would interfere with the Article 8 rights of the parties and witnesses. The district judge concluded that the balance of the right to the media of freedom of expression, the right of the husband and others to respect for family life, the principle of open justice under Article 6 and the implied undertaking as to confidentiality favoured maintaining privacy.

In relation to the husband's business enterprise, the husband was reluctant to give evidence and of the two witnesses he had called, one apparently refused to attend because of the media attendance. Clearly the husband's evidence was given under compulsion. If the evidence of the one witness formed part of the husband's full and frank disclosure then it was protected by the implied undertaking as to confidentiality and the completing balance under the European Convention of Human Rights favoured continued privacy. If not, then matters were more finely balanced and reporting might be justified on the basis of the principle of open justice. Despite the fact that the documents produced to the court included a press release about the business, the district judge felt the evidence and information was protected by the implied undertaking: "It was information given in proceedings held in private, in accordance with the FPR 2010, which are compliant with Article 6 of the ECHR."

Whilst the media were understandably interested in the case, their interest appeared mainly to be related to individuals "who are not in any way involved in these proceedings except to the extent that the husband has been compelled to provide confidential information about them to the Court in order to satisfy the requirement for full and frank disclosure of all matters relevant to the Court's decision in financial remedy proceedings." The husband had given information at a hearing held in private, and so held in compliance with Article 6 of the ECHR.

Disclosure was prohibited of any information in respect of the matrimonial proceedings save for:

(1) Matters permitted to be reported in respect of the divorce suit pursuant to s1 of the Judicial Proceedings (Regulation of Reports) Act 1926, and in respect of the divorce suit only.

(2) The fact and date of the financial remedy application and hearing.

(3) The fact and date of the settlement between the parties, but not the detail of it.