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Finance and Divorce November 2013 Update

Jessica Craigs, senior solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse the financial remedies and divorce news and cases published in October.

 

 

Jessica Craigs, senior solicitor, and David Salter of Mills and Reeve LLP

As usual, this month's update is divided into two parts:

1 News in brief
2 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.

Update on latest developments in reform of family justice system
The President of the Family Division, Sir James Munby provides his 7th view on the process of reform.

He addresses the following:

1. The judge 'setting the agenda' and timetable.

2. The twin principles of 'judicial continuity' and 'robust and vigorous case management'.

3. The 'slapdash, lackadaisical' and 'contumelious' attitude to orders made by the family courts.

4. The importance of Re B-S (Children) [2013] EWCA Civ 1146 and the court's approach to placement orders or adoption orders made without parental consent.

5. The pioneering FDAC (Family Drug and Alcohol Court) project.  This is the court hearing care proceedings where children are put at risk by parental substance misuse.  The aim of the court is to keep families together where possible.

For a full copy of the report click here


Sir Paul Coleridge speaks out against the Matrimonial Causes Act
Sir Paul Coleridge announced that he would be retiring from full-time judging in spring 2014.  He will be focusing his efforts on The Marriage Foundation.

His speech addressed the current state of legislation and encouraged practitioners to look at other jurisdictions which were: "more innovative and more daring in this field".


Husband claims that "a $3.3m apartment – doesn't mean I'm rich"
Yan Assoun, 43, claimed that despite owning a majority shareholding in a company which turned over $8m last year, and that he lived in an apartment worth $3.3m, he had no money.

Mr Assoun was refused permission to appeal the order of Judge Glenn Brasse whereby he was ordered to pay his wife's costs of £235,000. 

The substantive case is yet to be heard.

For the Telegraph report click here


ONS reveals Civil Partnership dissolutions rose by 20% in 2012
The provisional number of civil partnership dissolutions granted in England and Wales in 2012 was 794, an increase of 20% since 2011.  The figures also show that same-sex female couples are more likely to dissolve civil partnerships than men. 


£10m divorce battle between wife and mother-in-law
Dr Sharma and her husband Sunny, divorced in October 2012 after establishing a successful dentistry business.

Dr Sharma claims she owns seven of the twelve highly lucrative dental practices.  Mr Justice Simon ruled in her favour on the issue last year. 

Now Mr Sharma, his mother and his brother are asking the London appeal court (Lord Justice Jackson, Lord Justice McCombe and Lord Justice Floyd) to overturn this decision on the basis that Dr Sharma acted unlawfully in acquiring the five practices for her own company whilst still 'wearing the hat' of a director of the Sharma family business.  The Appeal Court judges have reserved judgment on the case and it will be delivered at a later date.


Married couples tax allowance announced
This month the Prime Minister announced plans for the introduction of a married couples' tax allowance.  The allowance will apply to couples who are both basic rate taxpayers of which one is earning less than the personal allowance.  Approximately four million couples will benefit.


Influential business leaders to be cross-examined in high profile divorce case
Sir Philip Green, Harold Tillman and Richard Caring will be cross-examined by Michelle Young's legal team when the case reaches trial later this year.

Mrs Young claims that Scot Young, a property and telecoms tycoon, has hidden £400m in offshore tax havens before they separated in 2006.  Mrs Young claims his friends "are, in fact, a conduit for his secreted wealth".

Mr Young was jailed earlier this year for failing to comply with court orders for disclosure.

For further details click here


ONS reports that children born in marriage down 40% over the last 50 years
The latest bulletin from the Office for National Statistics shows that the proportion of children born to married couples fell to 53% in 2012, a drop of 40% since 1963.

It also notes that the proportion of children registered by two parents at the same address was 31%, the same as in 2010.  The ONS states that this is "consistent with increases in the number of couples cohabiting rather than entering into marriage or civil partnership".


Case Law Update

Mittal v Mittal [2013] EWCA Civ 1255
Appeal by Mrs Mittal against an order staying her petition for divorce in favour of a petition issued by her husband in India.  Appeal dismissed.

Background
Mr and Mrs Mittal were born in India and are Hindu.  They are both Indian nationals and live in India, as do their families.  In 2003 they were married in India and their only daughter was born in India in 2004.

In October 2006, Mr Mittal came to England.  Mrs Mittal and their daughter joined him in February 2007.  They separated in September 2009 although Mrs Mittal did not leave the country until August 2010 following an unsuccessful immigration appeal.  Neither of them had any assets or income in England or Wales. 

On 31 August 2009, Mr Mittal began proceedings against Mrs Mittal in Uttar Pradesh, India.  In October 2009 at the latest, Mrs Mittal discovered the existence of these proceedings.

On 21 December 2011 Mrs Mittal issued her own petition for divorce in England.  At the time, Mr Mittal was living in England, but returned to India in April 2012.

It was not disputed that the courts in India had jurisdiction to determine the proceedings initiated by Mr Mittal and to make consequential financial orders. 

On 10 October 2012, Bodey J stayed Mrs Mittal's English petition on the ground that India was the more appropriate forum to hear the proceedings. 

The Appeal
The appeal was the narrow jurisdictional question as to whether the judge had the power to order a stay of Mrs Mittal's petition.

All solicitors and counsel acted pro bono and commendation was given to them for their research.

Lord Justice Lewison concluded that the judge had power to stay Mrs Mittal's petition and therefore the appeal should be dismissed.

The judge looked at s5 of the Domicile and Matrimonial Proceedings Act 1974 ("the DMPA 1973") and s49 of the Senior Courts Act 1981 and the judgment in Owusu v Jackson.

Mrs Mittal's argument was that if the courts of England and Wales have jurisdiction to determine her petition they must exercise it and that there is no discretion to refuse to do so. 

His Lordship found that Owusu v Jackson did not apply to proceedings governed by Brussels II Revised as opposed to the Judgments Regulation (Regulation (EC) 44/2001).  Furthermore the language of the relevant Articles in each Regulation differed significantly. Lewison LJ also observed that the policy underlying the Judgments Regulation had in fact now changed and, from 10 January 2015, a discretionary power to stay would operate.

In relation to the domestic legislation, at paragraph 47 His Lordship revisited and agreed with the judgment of Theis J in JKN v JCN [2010] EWHC 843 concluding that only proceedings that fell within Article 19 of Brussels II Revised are "governed by" the Regulation.

Lewison LJ concluded that this judge (Body J) had a general power under s49(2) of the Senior Courts Act 1981 to grant a stay.


TW v PL [2013] EWHC 3078 (Fam)
Judgment approving agreement compromising an application for financial provision under Schedule 1 to the Children Act 1989 notwithstanding the mother's breach of a term of the agreement.

Background
TW was the mother of NW born 23 December 2011.  The father of NW is PL.  PL played no part in NW's life and denied he was the father until a DNA test was undertaken last year to establish paternity.

TW applied under Schedule 1 to the Children Act 1989 for financial provision in respect of NW.  It was listed for a five day contested hearing.  Shortly before the hearing, the parties reached an agreement that PL would pay £1,600 per month for the maintenance of NW.  A draft order was produced by the solicitor on behalf of PL and was signed on 5 August.

After that, TW gave an interview to a popular magazine in which she made reference to PL and to his approach towards NW.  Accordingly, PL sought to withdraw his consent to the agreement.  His argument was that the interview was in breach of various undertakings that the parties had agreed should be incorporated into the agreement between them.

It was noted by Mr Justice Keehan that the agreement had not been signed by PL nor approved by the court.  Accordingly, there was no formal breach of any undertakings having been made by TW.

Xydias and Edgar agreements were both considered.  The decision before Mr Justice Keehan was whether the parties reached a concluded agreement to which they should be bound or whether there were vitiating factors which entitles the court to set aside the agreement.

Mr Justice Keehan concluded at paragraph 9 of his judgment that the agreement was in relation to financial provision for NW.  He was not satisfied that there were any vitiating circumstances which would lead to PL suffering any injustice if he were held to the agreement.  Accordingly the judge found that PL had no grounds for seeking to renege on the agreement concluded.  The agreement was approved by the judge and made an order of the court.


Taylor v Taylor [2013] EWCA Civ 1241
Mrs Taylor complained that a second charge on the FMH in favour of Mr Taylor's mother was not effective, and that throughout proceedings, Mr Taylor had failed to make adequate disclosures and had concealed assets.  Mrs Taylor applying for permission to appeal various orders.  Her application refused on the basis that there was no reasonable prospect of success.

Background

Mr and Mrs Taylor were married in 2006.  By the date of marriage, they already had a daughter born in November 2005.  The parties met in Dubai, lived together for some time there and later at a property in England in Mr Taylor's name.

They separated in November 2009 and Mr Taylor petitioned for divorce.

Mrs Taylor took issue with a charge, a second charge, in favour of the Mr Taylor's mother against the FMH.  The mother intervened.  This preliminary issue was determined on 22 March 2011 and the District Judge held that the charge was validly executed and that it did secure a real debt of £500,000 owed by Mr Taylor to his mother.

The ancillary relief claims were heard by HHJ O'Dwyer over several days in September and October 2011.  Judgment was ultimately given in April 2012.

Mrs Taylor appealed the decision of HHJ O'Dwyer on the grounds that the order and trial process were vitiated by Mr Taylor's concealment of assets.  She also appealed an order of Holman J of 2 October 2012.  That was an order on Mrs Taylor's application for permission to appeal against District Judge Bassett-Cross's order of 23 March 2011 whereby he dismissed the application to set aside the charge.

At paragraph 9, Lloyd LJ confirmed that Mrs Taylor was unable to challenge the refusal of permission to appeal to the High Court from the order of the District Judge by merit of s54(4) of the Access to Justice Act 1999.  That application was therefore dismissed immediately.

The effect of the intervener's charge and a prior mortgage resulted in their only being negligible equity in the FMH.  Mrs Taylor also said that the court did not have available to it adequate evidence as to Mr Taylor's financial resources or as to his property and financial dealings in the previous years.  Mrs Taylor argued that the court should either have refused to decide the question pending full disclosure or should have inferred that his assets were greater than he had disclosed.

Lloyd LJ concluded at paragraph 16 that he was not satisfied that there was any arguable substance to the allegations of non-disclosure or fraud.  A lot of Mrs Taylor's complaint was directed at the conclusion regarding the second charge in favour of the intervener.  This was understandable but not open to Mrs Taylor to challenge.

Consequently, Mrs Taylor's appeals were refused.

7/11/13