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Financial Remedy Update, July 2021

Abigail Pearse and Stephanie Hawthorn, associates at Mills & Reeve LLP, consider the important news and case law relating to financial remedies and divorce during June 2021.

 

 

 

 


 

 

 

Abigail Pearse and Stephanie Hawthorn, Associates, Mills & Reeve LLP

Case Law Update

J v J (Non-recognition of Overseas Divorce) [2021] EWFC 43 


This case concerned a Wife who made various applications before Mr Justice Peel, including ultimately for a refusal of recognition of a final decree of divorce obtained in China under Section 51 of the Family Law Act 1986.

By way of brief background, the Wife was of Polish origin and Husband was of Chinese origin. The parties began cohabiting in 2016, they married in 2017 and separated in 2019. The parties had no children.

The parties disagreed on where they lived during their marriage, with Wife alleging England (albeit agreeing that the parties often went on international business trips) and Husband alleging China.

Wife filed her divorce petition in England in May 2019, and by this point, the Husband had relocated to China and had evaded service of the petition. The Wife then issued financial remedy proceedings in December 2019, but the Husband also evaded service of these proceedings. Wife was authorised to continue with her divorce application, but there then followed a period of delay as the proceedings were transferred within the English courts and no further steps were taken, despite chasing by the Wife.

Meanwhile, whilst the Wife was still waiting for decree nisi to be granted, the Husband filed divorce proceedings in China in October 2019. On 14 December 2020, the Chinese court gave judgment granting the divorce, which was publicised on 27 December 2020.

Wife sought for this judgment not to be recognised, in order for her divorce (and associated financial remedy proceedings) to continue in England. Despite accepting that had it not been for the delay of the court, the Wife would likely have obtained a decree in England and Wales, Mr Justice Peel dismissed the Wife's application.

Further to an email in April 2020, the Wife was aware of the Chinese divorce proceedings. Emails were subsequently sent to her by the Husband's solicitors, via a long-used email address which she had previously used to communicate with them on - in circumstances where her residential address had been concealed for personal security reasons. It was held that whilst the Wife had not had notice of the first hearing in suit, and ordinarily should have been informed of it earlier, this ultimately did not cause her prejudice because she did have the opportunity to participate in further hearings. She had options open to her to allow her involvement. Whilst she had tried to instruct a McKenzie friend to attend the hearings on her behalf (with her being absent), this was not accepted by the Chinese Court. Mr Justice Peel was unaware of whether the concept of a McKenzie friend existed in that jurisdiction and in any event, even under English law, a McKenzie friend is only able to assist a party during proceedings, not represent them.

Ultimately, the Wife had reasonable opportunity to take part in the proceedings and reasonable steps were taken to notify her of the proceedings. On this basis, the Wife's application for non-recognition of the Chinese divorce was refused, and the divorce and financial remedy proceedings in England and Wales were also dismissed.

Further, Mr Justice Peel made clear that refusing recognition of a foreign decree of divorce should be done sparingly and with respect for the decisions of a properly constituted court in a foreign jurisdiction. Each case is to be assessed on its own merits.

M v D [2021] EWHC 1351

This case concerned an appeal against a without notice order made in December 2020, whereby an ex parte application for a non-molestation order under s42(2) Family Law Act1996 ('the Act') was dismissed, on the grounds of want of jurisdiction. The first instance decision was ultimately upheld by Mr Justice MacDonald.

The Applicant had alleged that the Respondent had been verbally abusive and threatening towards her. The Respondent, the Applicant's 'step-nephew' (her sister's step-son), had no notice of either the original application or the subsequent appeal. 

It was ultimately concluded at first instance, and upheld on appeal, that a 'step-nephew' did not fall within the term 'associated person' under the Act. The Applicant attempted to argue that she and the Respondent were relatives, as included by the s62(3)(d) of the Act, although it was accepted by all that step-nephew does not expressly fall within the wording of the Act itself (which does set out a specific list of people considered relatives - see section 63(1)(a) and (b)).

Included within this express list are step-mothers and step-fathers and it was argued on appeal that also included, with proper interpretation, were nephews 'acquired by marriage'. In any event it was argued that a purposive construction of the statute was required to acknowledge the "ever-expanding complexities of modern family dynamics in a society in which different relationships and different means of legitimised conception are recognised."

It was ultimately held that, given that certain step-relatives were expressly included within the definition of 'relatives', the omission of other step-relations was deliberate, as opposed to being a mere oversight. Macdonald J separated those relatives defined under s.61(3)(a) as those of 'lineal' descent and those under s.61(3)(b) as 'collateral relatives'. Parliament had included certain step-relatives within s.61(3)(a), but not so within s61(3)(b). Mr Justice MacDonald also considered that when it came to who could apply for injunctive relief under the Act, "Parliament was expressly concerned with the degree of genealogical proximity that would allow a person to fall into the category of "associated persons"... and the need for that category to be confined to "close" or "immediate" relatives.

The Act was not in place to create a new tort of molestation, but rather to protect family members of abuse, and as such Parliament had to draw the line somewhere. Indeed, it was acknowledged that otherwise identifying relatives could continue on forever as it was stated that families are, by genealogical reality, extended.

The judge concluded that s.63(1) of the Act is, in speaking of a "nephew...whether of full blood or of half blood or by marriage or civil partnership" not wide enough to encompass a person in the position of the Respondent. Whilst the judgment did restrict the breadth of the statute, in a world where it was acknowledged blended families are increasing, it was ultimately the case that the Applicant had an alternative remedy for protection under the Protection of Harassment Act 1997.

News Update

Consultation on the Child Maintenance Service

A consultation has been launched by the Department for Work and Pensions opening a discussion on various proposals designed to modernise and improve the current Child Maintenance Service (CMS), which was introduced in 2012.  Some of the proposals include, as per the Government website:


· Allowing unearned income to be included in CMS calculations

· Easing the evidential requirements for the self-employed where they have self-reported a change that breaches the income tolerance level for review (currently 25%)

· Extinguishing small amounts of low value debt, where collecting this would cost more than the debt itself

· Extinguishing areas where:


- Maintenance has been deducted from earnings where the employer has gone into administration; and

- the CMS are unable to recover the outstanding arrears from the trustee handling the companies' insolvency


· All CMS notifications to be sent, received and accessed digitally

· Various organisations having to provide information upon request in a timely manner.


The consultation closes on 6 August 2021. 

For the consultation document, click here.

Court Judgments moving to The National Archive

From April 2022, important court and tribunal judgments will be available to anyone via the National Archives, in a move hoped to increase transparency and secure free access.

Included in the archives will be judicial review rulings, European case law, commercial judgments and other cases of legal significance.

The long-term goal is for all sources of court judgment publications to migrate onto The National Archives website, allowing the digital files to be hosted securely. The largest source at present is BAILII which will continue to provide its service.

For more information, click here.

Government pledges to raise the minimum legal age of marriage to 18

The current legal age at which you can get married is 16, providing parental consent has been provided. It has recently been reported that the government have pledged to raise this to 18, with The Times suggesting Sajid Javid intends to introduce a private members bill on the subject.

Lord Wolfson, Parliamentary Under Secretary of State at the Ministry of Justice, wrote:


"The government supports raising the legal age for marriage in England and Wales to protect vulnerable children living here . . . It is committed to making sure children and young people are both protected and supported as they grow and develop in order to maximise their potential life chances. This includes having the opportunity to remain in education or training until they reach the age of 18 . . . Child marriage and having children too early in life can deprive them of these important life chances."


For the report in the Guardian, click here.

No fault divorce: coming 6 April 2022

It has been confirmed, by way of written answer to a Parliamentary question, that no fault divorce will not be introduced in October 2021, as originally indicated, but instead will be introduced on 6 April 2022.

Resolution have confirmed that they understand this delay is to allow time for necessary IT changes to HMCT's online divorce system. This new date is now fixed as a matter of parliamentary record, as noted by Resolution, with it being recognised by Chris Philip, Parliamentary Under Secretary of State at the Ministry of Justice, that the indicative date of October was "ambitious".  

Outdoor weddings and civil partnership ceremonies to be legalised in England and Wales
Following a commitment that was made in 2019 to legalise outdoor ceremonies, new regulations will take effect from 1 July 2021 allowing couples to have their whole wedding ceremony outside at the venue of an approved premises.

Previously the legal wedding or civil partnership ceremony had to take place in 'an approved room or permanent structure'. According to the government, this change will benefit nearly 75% of all weddings and civil partnerships in England and Wales that are non-religious and which take place on approved premises.  To find out more,  click here

Warning issued by the Court of Appeal against making applications and court orders hastily via email 

The Court of Appeal has discussed the issues and risks that can arise when applications and court orders are made hastily via email, in light of a children case where Lord Justice Peter Jackson held that an order was 'wrong and unjust for serious procedural irregularity'.

In his judgment, Lord Justice Peter Jackson emphasized that no matter what form an application takes, and whether or not there is a hearing, the same standards of procedural fairness are to be applied.

He went on to say "the fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person".

The judgment can be found here

Further consultation on hearings in the family justice system

The President of the Family Division has conducted the third consultation since remote hearings were introduced at the start of the pandemic to see how the family courts should operate as Covid restrictions begin to ease.

The survey, which was shorter than the previous two, asked questions about what aspects of remote working should be retained, what problems continue to be encountered and the experiences of attending court in person. Evidence was sought from families with children and all professionals working in the family justice system.

This consultation closed on 27 June 2021 and the findings are expected to be published this month.
 

27.07.2021