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Financial Remedy & Divorce Update, October 2019

Naomi Shelton, Associate, Mills & Reeve LLP considers the important news and case law relating to financial remedies and divorce during September 2019.

Naomi Shelton, Associate, Mills & Reeve LLP

As usual, this update is provided in two parts:

A. News

Family courts "failing" on wellbeing

Writing in the Bar Council's magazine, Counsel Professor Jo Delahunty QC comments on a number of efforts to implement Sir Andrew MacFarlane's wellbeing initiative but highlights that "they are an exception".  Sir Andrew who has made wellbeing a priority since taking over the role, has encouraged discussions between the legal profession and each designated family judge to agree parameters for acceptable working practices, such as the earliest and latest times advocates should be expected to deal with emails.  He has said he hopes to use these regional agreements to create a national template to identify "the bottom line expectations that should apply to all court centres".

Professor Delahunty QC refers to Her Honour Judge Roberts issuing a wellbeing practice note in Essex and Suffolk as well as His Honour Judge Tolson's draft directive for the Central Family Court which sets out listing and lunch times and that barristers are not obliged to reply to emails after 6pm. 

Two-thirds of divorce clients pay fixed fees

Almost two-thirds of divorce and separation clients now pay fixed fees, but less than half of them end up paying the price quoted at the start, a report has found.  It put the value of the UK family law market as a whole last year at £1.66billion and predicted that its value would increase "steadily, if unspectacularly" over the next five years.  Researchers from IRN said 64% of divorce and separation clients were charged a fixed fee at the start, but less than half (31% of the whole sample) actually paid that fee.  Most of this group (24% of the whole sample) were charged a higher fee, with only 9% charged a lower fee.  The report also found that almost a third of clients (32%) were handling their divorce proceedings themselves from start to finish – in line with previous findings.

Clients who used law firms reported high levels of satisfaction, with just under eight out of 10 satisfied or very satisfied by the service. However, this fell to seven out of 10 when clients were asked to rate explanations of costs.

The report found that consumer decisions on legal advisers were "very gradually" being driven by digital channels.

ONS publishes latest population estimates

The proportion of the population aged 16 years and over in England and Wales who are married has continued to decline in 2018 to 50.5%, down from 51% in 2017.

Whilst the proportion of the population under age 70 years who are married has declined, the proportion aged 70 years and over who are married has increased from 50.3% in 2008 to 55.8% in 2018.

The number of people aged 16 years and over who are single and have never married has continued to increase, rising by 369,000 from 2017, to a total of 16.7 million people (35%) in 2018.

The number of people aged 16 years and over who live with a partner and have never married has continued to increase, rising by 1.3million people since 2008, to a total of 5 million (10.4%) in 2018.

New Family Division Judge appointed

Frances Judd QC has been assigned to sit in the Family Division.

B. Cases

AR v ML [2019] EWFC 56 (Mr Justice Mostyn) 27 September 2019

This was an appeal by a husband against a final order allowing the wife to introduce further evidence relating to her housing needs after the financial remedies judgment had been delivered (though it had not been perfected).

At the end of a final hearing, the trial judge delivered a judgment which awarded the wife 49% of the total assets (£412,000 after debts had been paid).  During the trial, the wife had been criticised for not providing adequate evidence to support her proposal that she would be able to re-house mortgage-free in a two-bedroom property with a garden in Crouch End.  Even on her own case, after paying for debts, the wife would have been left with less than £530,000 to pay for all the costs of re-housing and she had been unable to provide any property particulars evidencing that property in that price bracket was available.  She had also failed to look for property in any area other than Crouch End.  The husband asserted that there would be no suitable properties on the market for less than £500,000. 

Immediately after having heard judgment, the wife's counsel indicated that the wife wanted to appeal.  There then followed lengthy discussions which resulted in the trial judge giving a second judgment and ordering the case to be adjourned for "finalising judgment and reconsideration of suitable housing fund for the [wife] and the child of the family". Directions were then made for the wife to file a statement as to her position on suitable housing and for the husband to file a statement in reply.  The judge said that she had been persuaded that the wife should have the opportunity to put fresh evidence about her housing needs before the court (despite the fact that the evidence should have been put to the court first time round). 

The husband appealed.  Mr Justice Mostyn was firm in his assessment:

"I have to say, with all due respect, that the judge's decision was not based on the correct legal principles as set out above and, inasmuch as it was an exercise of "discretion", was plainly wrong. There was no good reason shown why the judge should depart from the terms of her judgment. There was no reference to the principle of finality. There was no reference to the concept of due diligence. It was merely another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment has been delivered, to which the judge should not have succumbed. "

As a result, Mostyn J gave the husband permission to appeal and allowed the appeal.  Setting aside the order, the trial judge was directed to make an order that reflected her original judgment. 

Ogunware v Ogunware [2019] EWHC 2428 (Fam) (Mr Justice Holman) 25 July 2019

In this case Mr Justice Holman opened his judgment by explaining that he could not describe the parties as 'husband' or 'wife' as he 'would appear to be pre-judging the very matter in issue between them'.

The applicant, Mr Ogunware, sought to establish that the marriage the respondent asserted had taken place in Nigeria on 30 December 2006 had not in fact taken place.  He alleged that the marriage certificate she produced was bogus.  The respondent was adamant that a ceremony had taken place and that the certificate was genuine. 

Mr Justice Holman concluded that s.58 Family Law Act 1986 prevented him from making any declaration at all on the application.  The application purported to be made under s.55 Family Law Act 1986 but what the applicant was asking the court to declare did not fall within any of paragraphs (a) to (e) of s.55(1).  Section 58(3) expressly provides that on the dismissal of an application for a declaration under this part, the court does not have power to make any declaration for which an application has not been made.  Further, s.58(5) expressly provides that:

"No declaration may be made by any court, whether under this Part or otherwise—

(a) that a marriage was at its inception void..."

The underlying case of the applicant was that there was simply no "marriage" or any kind of ceremony or event at all between these parties on 30 December 2016 i.e. the applicant was not contending that there was a marriage that was, for some reason, a "void" one, but, rather, that there simply was not a marital event at all.  As a result, the application was dismissed. 

Holman J concluded his judgment by stating that it seemed to him that the only place where the matter could be reliably determined is in Nigeria, by the courts of Nigeria.