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Finance and Divorce Update March 2017

Frances Bailey, Principal Associate and Naomi Shelton, Associate with Mills & Reeve LLP analyse the news and case law relating to financial remedies and divorce during February 2017.

Naomi Shelton
, and Frances Bailey both with Mills & Reeve LLP.

As usual, the update is divided into two parts:
A. News in brief and
B. Case Law Update

A. News in brief

1 in 4 Child Maintenance Options clients have family-based arrangements after contact with the service
The Department for Work and Pensions has released figures that represent 15,900 children benefiting from effective family-based arrangements after having contact with the service, between May to July 2016.  'Effective family-based arrangements' are those set up by the parents and can be regular payments where at least some of the agreed amount is always or usually received on time or are occasional financial payments of transactions in kind, where the surveyed parent thinks the arrangement is working well or fairly well (see full statistics).

Wife who lost the bulk of her original divorce settlement by making "poor financial decisions" awarded increased maintenance from her ex-husband
The Telegraph reported on the case in which the Court of Appeal heard Mrs Mills' application to receive increased maintenance from her ex-husband after she fell into debt after unwisely investing the capital she received from her financial settlement from her husband (of £230,000).  The Court ordered that Mr Mills pay to his ex-wife monthly spousal maintenance payments of £1,441 (increased from £1,100 per month) as Mrs Mills is unable to meet her basic needs.  The published judgment is awaited.

Barnado's report that cases of children committing sexual offences against other children rose by 78% in England and Wales between 2013 and 2016
National charity, Barnado's, obtained figures of alleged offences reported to police forces in England and Wales under Freedom of Information rules.  The number of alleged offences reported to police forces rose from 5,215 in 2013 to 9,290 in 2016.  In total, there were 32,452 reports to police of alleged sexual offences by children on other children over the four year period.  Barnado's suggest that the true number of offences is likely to be higher because seven of the 43 police forces approached did not provide a full response to the information request.  Barnado's warn that the increase in offences could represent the next major child protection issue.

The Guardian reports that the Health Secretary has been urged by 16 police and crime commissioners for reform to the practice of GPs charging victims of domestic violence for a medical letter to prove abuse  
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applicants in private family law cases are eligible for legal aid only if they can adduce evidence that they are victims of domestic violence.  A GP's letter can constitute an acceptable form of evidence.  The Guardian reports that it is common practice for some GP practices to charge patients for producing the requested medical letter.  For the full story, see The Guardian website.

Cohabiting partner wins pension fight in the Supreme Court
The Supreme Court in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8, unanimously allowed an appeal by Denise Brewster and declared that the requirement (pursuant to the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009), that the appellant and her late partner should have made a nomination to the pension scheme, should be disapplied, meaning that the appellant was entitled to receive a survivor's pension under the scheme.

The appellant had lived with her late partner for around 10 years before his death.  Whilst he had worked for his public transport employer, for 15 years, he had paid into the Local Government Pension Scheme.  His nomination for his partner, the appellant, to receive a survivor's pension on his death had never been received by the Scheme which consequently refused to pay her a survivor's pension on his death. 

Government has no plans for 'no fault' divorce reform although it is considering further reforms to the Family Justice System
The Ministry of Justice spokesperson in the House of Lords, Lord Keen of Elie, responded to a question as to whether the government has any plans to review the fault-based divorce system, said in his written answer on 13 February 2017, 'The government is committed to improving the family justice system so separating couples can achieve the best possible outcomes for themselves and their families. Whilst we have no current plans to change the existing law on divorce, we are considering what further reforms to the family justice system may be needed".  A YouGov poll published on 17 February 2017 found that 69% of participants supported the introduction of no-fault divorce.

The Court of Appeal refuses a Wife her appeal to be granted a divorce
The appellant wife, Mrs Owens, has been refused her appeal to be granted a divorce from her husband, on her petition for divorce that the marriage has irretrievably broken down due to her husband's unreasonable behaviour.  The couple have been married for 39 years and it is contested by the husband that the marriage has irretrievably broken down and that the couple still had a "few years" to enjoy.   Mrs Owens was appealing against the decision of HHJ Robin Tolson QC who found, in 2016, that the allegations of behaviour made against Mr Owens were "of the kind to be expected in marriage" and accordingly, refused to allow the divorce.  Sir James Munby, President of the Family Division, hearing the appeal said, "It is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say it should be".  For the full story, see the BBC website.

Prime Minister announces plans for a major new programme of work leading towards introducing a Domestic Violence and Abuse Act
The Government has announced its objective and the work programme on the basis that it does not think that the way domestic violence is dealt with at the moment goes far enough or provides consistent legislative and procedural guidance on domestic violence offences.

Court of Appeal upholds ban on opposite-sex civil partnerships
The Court of Appeal held that the couple was being discriminated against because of their sexual orientation, which impacted on their private and family life.  However, the Court held that the discrimination was justified by the Government's legitimate aim of undertaking a proper assessment of the optimum way forward. The couple intend to appeal to the Supreme Court.   A summary of the case is provided in the Case Update below.

Supreme Court finds that minimum income rules for foreign spouses are lawful in principle
The Immigration Rules regulate immigration of non-Europeans in the UK and, under the Rules, a non-EEA spouse must earn £18,600 each year before being allowed to join their spouse in the UK.  The lawfulness of the minimum income requirement was scrutinised but ultimately upheld by the Supreme Court, although with some criticism. For the Supreme Court Press Summary click here. For the judgment click here.

Consultation launched on draft Practice Direction 3AA relating to the participation in proceedings of, and giving evidence by, vulnerable persons. 
The consultation launched by the Family Procedure Rule Committee relating to the draft Practice Direction intends to support the new Part 3A of the Family Procedure Rules (which does not form part of the consultation) and invites comments from interested parties on the draft Practice Direction. The consultation closes at 5pm on Friday 17 March 2017.

Prison and Courts Bill published
The bill, unveiled by Justice Secretary Liz Truss, seeks to put an end to domestic violence victims being cross-examined by their alleged attackers in the family courts.  The Bill inserts into the Matrimonial and Family Proceedings Act 1984 a new part 4B "Family Proceedings Prohibition of Cross-Examination in Person".  The Bill received its First Reading on 23 February 2017.

Death of Sir Nicholas Wall announced
To read The Presdent of the Family Division, Sir James Munby's moving tribute to the former President, Sir Nicholas Wall click here. To read the obituary by Dame Elizabeth Butler-Sloss published in The Guardian click here.

B. Case Law Update

Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81
(Lady Justice Arden, Lord Justice Beatson and Lord Justice Briggs) 21 February 2017
Since the introduction of same-sex marriage on 29 March 2014, same-sex couples have had the choice of entering either into civil partnerships or into marriage. In contrast, the Civil Partnerships Act 2004 currently bars opposite-sex couples from entering into civil partnerships, and therefore the only status open to such couples wishing to formalise their relationship is marriage, although the Marriage (Same-Sex Couples) Act 2013 required a review of the operation and future of civil partnership.

Rebecca Steinfeld and Charles Keidan were appealing against an earlier High Court decision refusing them judicial review of the Secretary of State's decision not – at this stage – to propose any change to the bar on opposite sex couples entering into a civil partnership. 

The facts of the case were eloquently summarised by Lady Justice Arden:

" ... Rebecca Steinfeld and Charles Keidan, are a young couple in a committed long-term relationship. They wish to formalise their relationship, but they have deep-rooted and genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They consider that the status of civil partnership would reflect their values and give due recognition to the equal nature of their relationship. Ms Steinfeld and Mr Keidan in good faith consider that marriage does not reflect the way in which they understand their commitment to each other or wish their relationship to be seen. Ms Steinfeld states in her witness statement that it is very important to them to have a civil partnership as the legal framework within which to raise their child as a CP would give their child a stable environment in which to grow up. They want their child to see the relationship as one of total equality reflecting the equal independent contribution which both parties make. They also desire the financial benefits of marriage and civil partnership, for example the rights of inheritance and relief from inheritance tax on death.  This would protect their child in the case of their premature death.  Moreover, they want their relationship to have the public recognition that registration as a civil partnership would bring."

The Court of Appeal dismissed the appeal.  In their judgment all the members of the Court considered that:

• the bar constituted a potential violation of the appellants' human rights under Article 14 (prohibition of discrimination) taken with Article 8 (right to respect for private and family life) of the European Convention on Human Rights; and

• the Court should not make any declaration of incompatibility with the couple's human rights. There was in any event a Private Member's Bill proposing the removal of the bar, so that question is already before Parliament.

However, the Court's reasons on the final issue of justification differed. 

• The majority (Lord Justices Beatson and Briggs), in agreement with the decision of the judge in the High Court, considered that the difference of treatment of same-sex and opposite-sex couples was objectively justified by the Secretary of State's policy of "wait and evaluate". While recognising that the focus of the review on the demand by same-sex couples for civil partnerships rather than the position of all couples is open to criticism, Lord Justices Beatson and Briggs considered it proportionate, and therefore lawful, for the Secretary of State to have further time to undertake a proper assessment of the best way forward on what is an important matter of social policy, when a number of options, including the extension of civil partnership to different-sex couples, or its phasing out, fall to be considered.

• Lady Justice Arden, dissenting on the justification issue, considered that the potential violation of the appellants' rights was not justified by the Secretary of State's current policy of "wait and see", though it was open to the Secretary of State to reformulate her policy.

All of the judges were critical of the status quo. All agreed that the couple are being treated differently because of their sexual orientation, and that this impacted their private and family life. All rejected the argument that the couple could "just get married". Most importantly, all emphasised that the government cannot just "wait and see" indefinitely, but must make a decision quickly or else the position will become unlawfully discriminatory.  Lord Justice Beatson said: "I do not consider that the discrimination in the status quo can be maintained for long." Lord Justice Briggs said: "I can well understand the frustration which must be felt by the Appellants and those couples who share their view about marriage, about what they regard as the Government's slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership."

An appeal to the Supreme Court is already being prepared. 

Hayatleh v Mofdy [2017] EWCA Civ 70 (14 February 2017) 
A religious marriage had taken place between the parties in Syria in February 1999. The husband ("H") was living in England at the time and had been represented at the marriage by a proxy. The wife ("W") subsequently moved to England and in August 2000 their daughter was born. They lived as husband and wife until H issued divorce proceedings in February 2013. The divorce proceedings would have run as normal had a District Judge, on reviewing the documents, questioned the validity of the marriage.

In May 2015, HHJ Tolson determined the Syrian marriage was valid and the parties could pursue divorce proceedings in England. H appealed.

The validity of a marriage is determined by the law of the place where it was celebrated (lex loci celebrationis). Both parties accepted that the religious marriage had been intended as a binding, valid ceremony under Syrian law. However, according to the joint expert, Syrian law also required the marriage to be registered following the birth of their daughter to become a binding civil marriage and there was conflicting evidence about whether this had occurred.

The Court of Appeal found that the judge had correctly relied on the presumption of marriage by cohabitation and reputation. Where there is evidence of a marriage ceremony and the parties have subsequently cohabited, unless there is cogent evidence to the contrary, a valid marriage is presumed (see Rayden and Jackson on Relationship Breakdown, Finances and Children (19th edition), paragraphs 3.154-3.158). There is an underlying policy in favour of the validity of a marriage evidenced by cohabitation as a married couple for a substantial time.

The parties had cohabited for 14 years and had conducted themselves as a married couple throughout that time. It was particularly telling that H had issued divorce proceedings, thereby asserting there was a valid marriage that he was seeking to dissolve. There was no compelling evidence against the presumption of a valid marriage.  H's appeal was dismissed. 

K v K [2016] EWHC 3380 (Mr Justice Francis) 24 November 2016
The issue in this case was whether the court should (a) grant a certificate of entitlement to a decree of nullity (as sought by the 'wife'), therefore permitting her to pursue claims for ancillary relief and financial remedy or (b) declare that there was nothing capable of recognition as a marriage and therefore dismiss the nullity petition (as sought by the 'husband'), leaving the wife with no such rights.  Both parties accepted they had not been legally married.

In brief, the husband was 74; the wife 61.  The husband was married in 1964 to a Mrs B who died in 2015.  The wife was married in 1972 to a Mr Z.  Her marriage was terminated by a Talaq in Pakistan in 1994.  The parties entered into a marriage ceremony in 1999, the wife claiming she was not aware the husband was still married to Mrs B at that time.  In any event, both had doubts as to the validity of their marriage, not least given it was a Shia ceremony, and both were Sunni Muslims and the wife having additional concerns as to whether her Talaq from her first husband had been properly registered.  Given her concerns the wife ceased having sexual relations with the husband from 1999 until August 2003.

The dispute in the case was whether the parties underwent a further ceremony of marriage in August 2003, following the wife being granted a decree of Khula in April 2003 from her first husband.  The wife's case was that she and the husband had a telephone conversation with an Imam in Pakistan on 15 August during which the formalities of a Nikkah were completed and that they subsequently flew to Pakistan where there was a formal ceremony on 28 August.  The husband's case was that neither the phone call nor ceremony ever took place.  He accused the wife of faking a marriage deed and surreptitiously securing his signature and thumb print from other documents to perpetrate that fraud.  

Mr Justice Francis noted that one of them had to be lying.  Having evaluated the evidence, he concluded he preferred the evidence of the wife.  Accordingly, he found that the marriage ceremony had taken place and that the wife honestly believed the husband was divorced from his first wife.

Expert evidence was adduced in the case as to the fact that the Nikkah was not registered.  Furthermore, it was probable that the husband was still married to Mrs B in August 2003 and her consent had not been obtained to a polygamous marriage.   Had those formalities been complied with, Mr Justice Francis found there would have been a strong case for recognising the Nikkah but, in their absence, the wife had been right to change her application from one of divorce to nullity.  In relation to that application, he found the parties intended and believed the August 2003 ceremony to be a valid ceremony of marriage and therefore was completely satisfied the wife was entitled to a decree of nullity, with the ability to apply for financial remedies that flowed from that.

B v L [2016] EWFC 67 (Mr Justice Francis) 20 October 2016 
In this case Mr Justice Francis give three separate judgments in relation to the wife's petition for divorce in the courts of England & Wales and the husband's wish for any divorce to be dealt with in Pakistan.

The parties were married in May 1995 pursuant to Sharia law in Pakistan.  It was accepted that both were habitually resident in England & Wales and therefore the court had jurisdiction to entertain divorce proceedings.  The husband was a devout Muslim with a principled objection to divorce.

The husband argued that, given the parties were married pursuant to Sharia law, only the courts of Pakistan had had jurisdiction to hear the divorce.  Mr Justice Francis dismissed his application, finding that to allow it would have 'far reaching consequences', subjecting the wife to different rules of English law than people of other faiths or nationalities living in the jurisdiction and effectively approving racial and gender discrimination. He reasoned it amounted to racial and gender discrimination as (a) the wife would be treated differently due to her status as a dual British / Pakistani national and (b) whilst he had no expert evidence it seemed reasonably clear that it would be more onerous for a woman to secure a divorce in Pakistan than a man.  He also commented that there was no expert opinion to support the husband's contention that he (the husband) would be committing a criminal offence if there were a divorce in England and Wales and, in any event expressed surprise that 'that could possibly be true'.

In his second judgment, Mr Justice Francis rejected the husband's forum non conveniens argument, calling the divorce a 'very English divorce' (the parties were resident in England and the majority of the assets were in England, including NHS pensions).  

Finally, in his third judgment, Mr Justice Francis dealt with the Husband's application to set aside the certificate of entitlement to decree nisi and seek relief from sanctions (arising out of his failure to have filed his acknowledgement of service in time and his 'surprising' decision not to file an answer).   Mr Justice Francis considered the circumstances the court must take into account when dealing with an application for relief from sanctions pursuant to paragraph 4.6 of the Family Procedure Rules 2010 and dismissed the husband's application.

Of some interest, in view of the imminent judgment expected in the case of Owens, Mr Justice Francis commented on how a defended divorce (if he allowed the husband's application for relief from sanctions) would likely proceed through the courts.  He summarised "The judge is then going to look at the particulars…and I think it far more likely than not that at least one of the current or new particulars [assuming the wife would expand on the current particulars] are going to be proved.  That is not to make findings now against the husband, it is simply to state the obvious, which is that these defended divorces do not usually end up with there being no decree."

AF v MF & Ors [2016] EWFC 65 (Mr Justice Moor) 20 October 2016 
This was a complex financial remedy case and the length of the hearing alone (10 days) gives some idea as to the issues involved.  Suffice to say there was absolutely no agreement between the parties on pretty much any issue.

The case involved a wide cast of characters spread across various countries, numerous businesses, complex trust arrangements (including a Liechtenstein Stiftung holding a significant shareholding in a AIM listed company), interests of other family members (including the husband's 90 year old father, described by Mr Justice Moor as still "the patriarch of the family, with his fingers well and truly on the financial pulse"), various properties, and disparate assets, including valuable works of art and a boat. 

The couple were both in their late 50s and had had a marriage lasting some 36 years (including pre-marital cohabitation).  There were two adult children. 

The heavily contested litigation had "destroyed a high part of the assets".  The wife's costs were £551,000 and the Husband's £671,000.  The judgment records that both had been warned throughout the litigation about the "horrific costs" being incurred.  The satellite litigation included maintenance pending suit, applications to prevent the husband dealing with assets and a variation application in respect of the maintenance pending suit award.  There was also an outstanding Imerman issue relating to a large number of the husband's documents which had been found by the wife at the family home and which she had passed to her legal team. 

Mr Justice Moor noted that the open proposals were "as far apart as in any case [he could] remember dealing with".  The husband proposed selling the family home (net equity £1.3million), paying off the debts and dividing the balance equally, a transfer of a summer house to him, a pension share in the wife's favour to achieve equality on pensions (although this was later withdrawn as the husband's pension had been so severely diminished by costs) and joint lives maintenance of £3,500 a month.  He calculated that this would give the wife 68% of the assets (as she had some inherited assets in her own name)

The wife, on the other hand, sought financial provision to the tune of £20million which included the outright transfer of the family home to her and a lump sum of over £18million on a clean break basis, with maintenance at £4,300 pcm until payment.  She was working on the assumption that the pot of assets was worth £98.3million.

Needless to say, the parties could not agree a schedule of assets and a large part of Mr Justice Moor's job was to make numerous findings of fact about the assets and income of the family.  The main factual differences between the parties were in relation to (a) the beneficial ownership of an overseas property (legally owned 90% by the husband's father and 10% by the husband) (b) whether the assets of the Liechtenstein Stiftung were a resource of the husband's and (c) whether transfers of shares in Y Plc into a trust was a transaction undertaken to defeat the wife's claims.

The ultimate schedule of assets drawn up by Mr Justice Moor is found in the appendix to the judgment.  It shows that there are total assets of £2.7million (accepting that the overseas property was held 90:10 by the husband's father and the husband and refusing to 'add back' the shares transferred to the trust).  The elephant in the room, as it is referred to by Mr Justice Moor, was the Liechtenstein Stiftung which, does not appear on his schedule of assets.  However, he found that up to £6.1million could be made available to the husband, albeit he accepted it was not the same as liquid capital and would only ever be held by the Stiftung.  He said:

"It is impossible to provide a formula for a court to divide liquid resources of just over £1.6million and illiquid resources of just over £1.1million when H has available up to £6.1million from a trust. I cannot simply add the £6.1million onto the schedule and divide by two"

Taking into account the fact that £2.3million had already been made available to the Husband from the Stiftung, and his findings as to further liquidity (particularly in view of the lack of full disclosure as to the Stiftung's assets), the judge awarded the wife just over £1million from the sale of the family home (a property considered to be in excess of W's needs), artwork worth £63,000 and retention of her pension and inherited assets, plus periodical payments of £4,583 a month so as to equalise the parties' incomes.  Although unable to order a clean break, Mr Justice Moor emphasised the desirability of achieving one if possible given the level of acrimony and costs.  He calculated the appropriate Duxbury fund was £925,000. 

Mr Justice Moor made no order as to costs and concluded by saying:

"I do not believe that this judgment has really got close to describing accurately the truly terrible level of acrimony in this case. Huge amounts of costs have been wasted. It seems to me, having heard the evidence that I have, that both parties are equally to blame."

Thakkar v Thakkar & Ors [2017] EWFC 13 (Mr Justice Moor) 10 February 2017 
This case was a fact finding hearing in complex financial remedy proceedings, held to determine the preliminary issue as to the extent of the husband's beneficial interest in 60 international company entities.  Readers may be familiar with the matter as Mr Justice Moore had heard in June 2016 a contested application for the decree nisi to be made absolute, which he refused (see the November 2016 Finance and Divorce Update here.

The parties had separated after a five year, childless, marriage.  Both were in their 30s.  The wife was a journalist and author; the husband a 'highly successful businessman' dubbed Africa's youngest billionaire.  His businesses were conducted through 'numerous different levels of company split between holding companies and subsidiaries' in an 'exceptionally complicated' structure of about 60 entities spanning the globe from the British Virgin Islands to Dubai, via Panama, Uganda and Switzerland.

There was no doubt that the husband was the founder and public face of one group of companies, the Mara Group.  The issue, however, was his beneficial ownership.   The wife's case was that the husband was the ultimate beneficial owner; the husband's case was, in essence, that the beneficial ownership was held one third by his father, one third by his mother and one third by his sister (albeit he held the legal title to his sister's interest to protect her from her late husband's creditors).   He did, however, concede (for the purposes of the litigation) that one-fifth of the resources of the Mara Group could be treated as a resource available to him (calculated on the basis that all family members had an equal interest).

The husband's sister and mother intervened in the proceedings.  Their case was that that a genuine corporate restructuring of the Mara Group had taken place in 2012 and that legal and beneficial interest in the companies vested in them.  They, together with the husband, argued that the wife could not succeed on her case unless she established that the corporate structure was a sham (Snook v London and West Riding Investments Ltd [1967] 2 QB 786 and A v A [2007] 2 FLR 467); the wife argued she merely needed to show that the shares were held either on trust or as nominee for the husband (Prest v Petrodel Resources Limited [2013] UKSC 34).

Mr Justice Moor heard from evidence from the husband, the wife, the husband's father and the husband's sister.  His mother did not attend court or give evidence.  He made a number of findings of fact and concluded that any shares by the husband's mother or sister were held as a nominee or bare trustee for the husband.  Furthermore, he found that the husband held the entire beneficial interest in the corporate entities and that any argument that he held his interest on trust for his sister was a 'palpable nonsense'.  He rejected the husband's and the intervener's case that he needed to find that the arrangement was a sham to reach his conclusion but did comment that if it was necessary for him to do so, he would find that the declaration submitted to the BVI authorities, giving the appearance of creating a beneficial entitlement different from the actual beneficial entitlement, satisfied the Snook test for a sham.

Norman v Norman [2017] EWCA Civ 49 (08 February 2017)
The husband ("H") and wife ("W") had been involved in long running litigation following the making of a consent order in 2005.  In 2009, W had successfully applied to vary the order and her periodical payments had been extended to April 2012 ("the 2009 Order").  The periodical payments were then further extended to August 2015, when it was directed that a nominal order would take effect. 

H appealed and the Court of Appeal restored the 2009 Order.  The hearing was in public, but W obtained an anonymity order. There was no explanation for the order in the judgment and the media was not notified of the application (so there were no arguments over whether or not anonymity should be granted) or the order itself. W successfully applied to set aside the 2009 Order on the grounds of material non-disclosure. H appealed and the Court of Appeal again restored the 2009 Order.

W then applied to set aside the original consent order for non-disclosure.  This was refused in March 2015. Her initial application for permission to appeal the refusal was also dismissed. W's renewed application for permission to appeal was heard in open court and adjourned.  In the transcript of his judgment, Lord Justice McFarlane included a reference to a quote from a previous judgment that named H and W.  A reporter was in attendance and on having it confirmed by Lord Justice McFarlane that no reporting restrictions applied (and W's counsel not referring to the earlier anonymity order), the Strand News published a report on the case which was picked up by the Evening Standard and Daily Mail.  Indeed, McFarlane LJ's order (which had originally referred to the parties by their initials) was then amended under the slip rule to include the couple's full names. 

Shortly after publication, W contacted the news agencies to complain that the stories were in breach of a reporting restriction order.  The managing director of Strand News contacted the Judicial Communications Office who confirmed that McFarlane LJ had not imposed any reporting restrictions.  A Court of Appeal hearing was listed to consider the continuation of the anonymity order or a fresh anonymity order, and also W's adjourned application for permission to appeal the 2015 order.

W argued for the continuation of the anonymity order made in 2011 or alternatively for a fresh anonymity order to be made.  She submitted that she had been subject to "scathing personal criticism" and unpleasant comments which could affect her job prospects and reputation.  She was concerned about the effect on the children; she was not a public figure, had never sought to have been and neither had H.  The anonymisation of the case didn't prevent the case and its content from being reported. 

She also highlighted Mr Justice Mostyn's decision in DL v SL (ancillary relief proceedings: anonymity) [2015] EWHC 2621 (Fam) and maintained that the current proceedings were "quintessentially private business" – matrimonial financial relief was a category of court business so private and personal that in almost every case the right to privacy would trump the right to unfettered freedom of expression. 

The press opposed its continuation. H remained neutral on the issue.

Lady Justice Gloster gave the leading judgment and held that "only exceptional circumstances justify the departure from the normal principle [of matters in the Court of Appeal being heard in open court and not being subject to anonymity directions]".

Appeals against financial remedies orders are heard in open court and are not subject to any anonymity restrictions unless it is established that a party's Article 8 ECHR rights are engaged.  Even then, the balancing exercise set out in Re S [2005] 1 AC 592 must be carried out before a judgment can be anonymised or a hearing be heard in private.  It is very rare for the Court of Appeal to order anonymisation in an appeal against financial remedy orders (K v L [2011] EWCA Civ 550).  She expressly rejected Mr Justice Mostyn's invitation to revisit the anonymity requirements of appeal following X v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, clearly distinguishing that case (where the parties were children and protected parties and the issue was the approval of personal injury settlements) from financial remedies proceedings.

The Court assumed (without deciding the issue conclusively) that W's Article 8 rights were, to a limited extent, engaged since the evidence contained historic information about her finances.  Indeed, most of the information concerned H.  However, it was emphasised that criticism in the media or on social media for bringing a claim, or distress caused by comments made, would not in general engage an individual's Article 8 rights. 

Even taking into account the limited engagement of W's Article 8 rights, the Court of Appeal were firmly of the view that the media's Article 10 rights had a greater interest in the case and justified an interference with W's Article 8 rights.  The arguments put forward by the media were much stronger.  They highlighted that anonymisation of cases reduced the public's engagement with the reporting and that public engagement with the cases served the public interest.  This case had also already been reported in the media and much of the information did not actually relate to W or the adult children.  The case raised issues of a party's repeated attempts to challenge historic orders as well as non-disclosure and these were issues that demanded the opportunity for the public to debate them.

Finally, no reliance could be placed on the original anonymity order because the press had not been notified of the application. No arguments to the contrary had been presented and no reasons had been given by the court for the order being made.

The judgment expressly does not apply to financial remedies proceedings at first instance, and is limited to cases heard in the Court of Appeal.  Unlike the Court of Appeal, financial remedy applications in the Family Court and the Family Division of the High Court are heard in private, except where the rules or any other enactment provide otherwise, or where the court directs otherwise (r.27.10 FPR 2010).  But the fact that a judge at first instance has made or refused to make an order for anonymity does not bind the Court of Appeal. Court of Appeal decisions are likely to have wider impact than decisions at first instance and are inherently more likely to raise matters of public interest. Except in rare cases, the Court of Appeal proceeds on the basis of the facts found by the first instance judge.

The Court noted that there is a difference of judicial opinion about whether financial remedy hearings at first instance should be heard in public or private, and the extent to which these proceedings can be reported (see Mostyn J in Appleton v Gallagher and others [2015] EWHC 2689 (Fam) and DL v SL [2015] EWHC 2621 (Fam), compared with Holman J in Luckwell v Limata [2014] EWHC 502 (Fam)). The court did not indicate which approach was correct, but confirmed that these issues will be considered by the Court of Appeal in the near future.

The Court criticised the failure to file a formal paper application for the anonymity order and set out [at para 34] the procedure when applying for anonymity orders or other restrictions on publication in the Court of Appeal. 

• There should be a formal application, setting out the grounds on which the anonymity application is based, supported by evidence (it can be included in sections 9C and 10 of the Appellant's Notice).

• Notice of the intended anonymity application, a copy of the notice of appeal and any evidence in support should be given by the applicant to media organisations, by service on the Press Association's Copy Direct Service.

• The exception to this is that in a financial remedy appeal, a formal application may not be necessary if the parties agree and all that is sought is anonymisation of the names and dates of birth of minor children or, for example, restrictions on the publication of information about which school they attend. However, even in this type of case, a letter should be sent to the court indicating that an application will be made and stating that the court may wish to consider whether the press should be informed.

Stevenson v Stevenson [2016] EWFC B114 (District Judge Dignan) 11 November 2016
This case serves as a reminder of the options open to a court when faced with a recalcitrant party.  The husband applied for an order for financial remedy and filed and served his form E.  The wife had failed to file hers, despite earlier orders re-timetabling the requirement for her to do so, and failed to attend the hearing of the husband's committal application. An order was therefore made in her absence that she be committed to prison for 28 days, suspended for a 14 day period to allow her to finally file and serve her form E.  The husband was awarded costs of £951.80.

MS v PS (Case 283/16) (Court of Justice of the European Union, 9 February 2017)
To finish, a look of a recent judgement from the Court of Justice of the European Union.

Readers may recall the case of MS v PS [2016] EWHC 88 (Fam) in which Mrs Justice Roberts made a referral to the Court of Justice of the European Union (the CJEU) to determine whether an application to enforce a maintenance order under the EU Maintenance Regulation 2009 could be issued in the court with jurisdiction over maintenance obligations, or whether the application must first be lodged with the central authority referred to in Article 49 of the EU Maintenance Regulation.  The factual background to the matter was a German wife seeking to enforce a German maintenance order against her former husband who was English and, since separation, was living and working in England.

The CJEU has now issued its judgment in which they have held that Article 41(1) of the EU Maintenance Regulation (which reads "a decision given in a Member State which is enforceable in the Member State of enforcement shall be enforced there under the same conditions as a decision given in that Member State of enforcement"  (emphasis added)) should be interpreted as meaning that a maintenance creditor who wishes to enforce an order given by one member state in another member state may apply directly to the competent authority, and does not have to apply to that court through the central authority of the member state of enforcement.  Applying through the central authority remains an option, however, and may still be used where a maintenance creditor requires assistance: for example, to locate the maintenance debtor.

The judgment further states that member states must amend any domestic procedural rules that conflict with this ruling.  In any event, even if national law does not provide for a maintenance creditor to apply directly to the competent authority, it is made clear that the national court must apply Article 41(1) as interpreted above and refuse to apply any conflicting domestic provisions.

In England and Wales, the judgment means it is now clear that applications to enforce maintenance orders do not need to be lodged with the Lord Chancellor for onward transmission to the court through the Reciprocal Enforcement of Maintenance Orders Unit (REMO), but can be made direct to the court in question.