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Financial Remedy Update, October 2021

Stephanie Hawthorn, associate, and Robert Jackson, trainee solicitor, at Mills & Reeve LLP, consider the important news and case law relating to financial remedies and divorce during September 2021.















Stephanie Hawthorn
, Associates and Robert Jackson, Trainee Solicitor,  Mills & Reeve LLP

Case Law Update

Hussain v Parveen [2021] EWFC 73

In 2000 the Respondent married her first husband in Pakistan. They lived together only for a short period before he returned to the United Kingdom. He later said that he did not have the financial resources to bring her over to the UK to join him and hence he was given an ultimatum- bring her to the UK or divorce.

In February 2008, the Respondent's first husband pronounced Talaq (male-initiated Islamic divorce) in the form of a letter given to the Respondent's brother in England. The letter went to the mosque in Bradford where it was converted into a divorce certificate. This was then provided to the Respondent in Pakistan and provided to the local Union Council in Pakistan. This procedure followed the Muslim Family Laws Ordinance of 1961 which governs marriage and divorce in Pakistan.

The Respondent subsequently married the Petitioner in a Nikha ceremony in Pakistan on 19 December 2008 and moved to the United Kingdom in March 2009. The marriage subsequently broke down.

The Petitioner sought to claim that their marriage was bigamous, as her previous divorce was transnational in nature and could not be recognised in this jurisdiction. The Respondent argued that her previous divorce should be recognised and relied heavily on public policy reasons to prevent marriages being valid in one country but not another ("limping marriages").

The key legislation involved was the Family Law Act 1986 ("FLA 1986") which sets out that an overseas divorce will be recognised if:

• it was obtained by way of 'proceedings' in the relevant country;

• it was effective in the law of the country where it was obtained; and

• either party was habitually resident or domiciled in the country where the divorce was obtained or a national in that country when proceedings were commenced.

If a divorce is not obtained 'via proceedings', other requirements relating to domicile and habitual residence apply.

Ultimately, Mrs Justice Arbuthnot concluded that, whilst the Respondent was a Pakistani national and had habitual residence when proceedings were commenced, the divorce was in fact a transnational divorce, given it started in the UK and concluded in Pakistan. The judge drew on the authorities of R v Secretary of State for the Home Department Ex p. Fatima (Ghulam) [1986] AC 527 and Berkovits v Grinberg [1995] Fam 142 to conclude that transnational divorces are not overseas divorces for the purposes of recognition in the UK under the FLA 1986.

As such, the marriage was declared to be a nullity. 

News Update

New Family Law Fees

At the end of September, Article 7 of the Court Fees (Miscellaneous Amendments) Order 2021 increased court fees to keep up with inflation.  This was an amendment to the table in Schedule 1 of the Family Proceedings Fees Order 2008.

Some of the key increases include the fees for:

• An application for a decree of divorce or a decree of nullity, or a dissolution order or nullity order has increased to £593. 

• A defended application for the court to consider making a decree nisi, conditional order, decree of judicial separation or a separation order has increased to £54.  This does not include undefended cases, as no fee is due.

• Applications made with notice, during existing proceedings, increased to £167.  This excludes applications separately listed in Schedule 1. 

• The fee for filing (i) a notice of intention to proceed with an application for a financial order subject to FPR 9.4(a) or (ii) an application for a financial order subject to FPR 9.4(b), other than a consent order application, increased from £255 to £275.  This increase is under Art 7(39).

For the full Amendment Order, click here.

Domestic Abuse Support (Local Authority Strategies and Annual Reports) Regulations 2021

The new Regulations concern the support local authorities give to victims of domestic abuse under Part 4 of the Domestic Abuse Act 2021.

When publishing a section 57 strategy, a local authority must now adhere to Part 2 of the Regulations, including:

• They must publish a section 57 strategy before 5 January 2022.

• They must review their section 57 strategies within 3 years of their first publication, and within each subsequent 3 years.

• Part 2(5) sets out what the local authority must consider when preparing a section 57 strategy.

• They must publish a draft of the section 57 strategy at least 10 weeks before they intend to publish it.

When publishing a section 59 report, a local authority must adhere to Part 3 of the Regulations.  Part 3 concerns the form and content of the section 59 reports.

For the full Regulations, click here.

Online divorce applications

All divorce applications must now be filed online using MyHMCTS.  This meets the requirements of the Divorce, Dissolution and Separation Act 2020, which is coming into force on 6 April 2022. 

The only exceptions, which should be filed at the Bury St. Edmunds Regional Divorce Centre, are applications for:

• Civil partnership dissolution.

• Judicial separation.

• Nullity.

MyHMCTS allows applications to be submitted at any time and from any location.

Since moving online it has been said that less than 1% of applications are being returned (compared to a previous figure of 20% of paper applications). This is according to Adam Lennon, Deputy Director of the MyHMCTS Family team.  He highlights that divorces applied for online are being finalised in an average of 20 weeks, whereas those applied for on paper are taking 60 weeks.

There was a transitional period when paper applications continued to be accepted, which ended on 4 October 2021.

For support registering with MyHMCTS, contact HMCTSFinancialRemedy@justice.gov.uk .

Family Mediation Vouchers

The Government has extended the mediation voucher scheme which helps support separating couples to access alternative dispute resolution and resolve their dispute without litigation.

The scheme gives a £500 voucher to separating couples to use on mediation services.  The mediator can automatically claim the value from the Government.

The uptake in the scheme has been clear, with the Ministry of Justice stating that around 130 vouchers are used each week, since its launch in March 2021. 

There will be a further £800,000 allocated to the voucher scheme by the Ministry of Justice.  This is on top of their £1,000,000 initial investment in the scheme. 

Given mediation is usually provided at a cost, unless a party has legal aid, this additional investment should help a further 2,000 more families. Those running the voucher scheme, the Family Mediation Council, highlight that up to 75% of those using the vouchers have been helped to reach full or partial agreements.

Jane Kerr, an FMC Accredited mediator commented that:

"The mediation voucher scheme has been invaluable in providing clients with access to mediation at a time when money is tight […] I have worked with several couples who were interested in the benefits mediation offered, however were not financially in a position to get started."

In addition to helping the separating couples who use the scheme, the pressure on the family courts would only be eased if more couples resolve their disputes out of court.

For more information, click here.

Justice Committee inquiry into court reporting

A new inquiry has been launched investigating open justice and court reporting in the digital age.  The inquiry was launched by the House of Commons Justice Committee on 17 September, and they are seeking evidence on the topic by 18 October. 

Following the rise of social media and instant reporting, together with the pandemic-driven ability to follow court proceedings remotely, questions are raised about how the court reporting will look moving forwards and whether the long-held rules can continue.

The inquiry will:

• Focus on technology's impact and court reform.

• Investigate potential issues of transparency and accessibility of court proceedings.

• Consider whether technology can be used to enhance open justice, and how social media has impacted court reporting.

The Committee is seeking evidence on the following topics, by 18 October:

• How has the media's coverage of courts changed and what are the implications for open justice?

• What are barriers to the media obtaining information from the courts?

• What could be done to make information on court cases more transparent and accessible?

• What is the impact of social media on court reporting and open justice?

• What is the effect of court reform and remote hearings on open justice? 

To submit evidence, no longer than 3,000 words, click here.

Pension Sharing : How important is it?

New research shows just how important seriously considering pension sharing on divorce is and how much it can impact finances in later life. 

The research was conducted by the Manchester Institute for Collaborative Research Seedcorn Project, supported by the Pensions Policy Institute.  It investigated the implications of divorce for pension provision and later life welfare, finding that:

• Pension sharing on divorce could substantially effect women's finances in later life.

• Any trade-offs between property and pensions during divorces may not be balanced. For example the roper shows that households in the top 40% of household income, the median pension wealth is higher than the median property wealth. Such disparity if particularly prevalent for those living outside London and the South-East.

• Pension wealth is generally shared unequally between men and women, with men having substantially more private pension wealth than women. 

o For couples with pensions, around half have a partner with 90% of the pension wealth, and fewer than 15% have partners with roughly equal pension wealth.

o The disparities in pension wealth between men and women increase with age.

More research is needed on the cause and effect of this imbalance and how this varies across the population. The researchers also note that an especially interesting question here is how the asset mix changes across cohorts in response to changing patterns of homeownership and women's employment, and the impact of debt.

For the full report, click here.
 
08.10.2021