Category: Family Law

Another short working week has mercifully kept the family law news to a minimum, but I’ve found the following four stories for your delectation:

Firstly, it has been reported in the mainstream media that a millionaire banker is suing his ex-wife for £500,000 in rent, which he claims she should have paid him for occupying the former matrimonial home. Kerim Derhalli and Jayne Richardson-Derhalli were divorced in 2016. They agreed a financial settlement, under which Mrs Derhalli received around £6.5 million from Mr Derhalli, and was due another £5 million after completion of the sale of the home, which was owned by Mr Derhalli. Mrs Derhalli remained in occupation of the property, rent-free. However, the sale was delayed, and in March 2017 Mr Derhalli’s lawyers requested that Mrs Derhalli either vacate the property, or start paying rent for her occupation. She refused, and remained in the property until it was sold earlier this year. Mr Derhalli sued Mrs Derhalli for unpaid rent, claiming £20,000 a month for the two years she remained in the property after being asked to leave. At an initial hearing the judge said: “It is my view that Mr Derhalli was entitled to determine the licence to occupy with reasonable notice. It follows that Mrs Richardson-Derhalli could be considered a trespasser from April, 21, 2017, since when she remains liable to pay for the use and occupation of the property.” The case will return to court at a later date, for an assessment to determine the amount of rent Mrs Derhalli should pay. An interesting case – hopefully, a full report of the judgment will be published in due course.

Secondly, Fiona Bruce, Conservative MP for Congleton (no, not the TV presenter), has spoken out against the government’s plans to introduce no-fault divorce. Ms Bruce, who is a solicitor, says that she believes that the new law risks “an immediate spike in divorce rates, which will impact negatively on the families involved.” She told the Law Society Gazette that the government ignored warnings that the changes will make divorce easier, and said: “The removal of fault sends out the signal that marriage can be unilaterally exited on notice by one party with little, if any, available recourse for the party who has been left. There will be far less pressure, or incentive, to work at the relationship in such circumstances.” With respect to Ms Bruce, I am sure that most family lawyers would disagree. People don’t choose to divorce simply because the law makes it easier, and in any event for most people the new law will not make divorce any easier, or any quicker. The new law is not about making divorce easier, but about making it less acrimonious.

Thirdly, the President of the Family Division, Sir Andrew McFarlane, has released draft guidance, for consultation, on reporting in the Family Courts. The guidance follows a recent case in which a journalist appealed against a reporting restriction order. Whilst the substantive outcome of the case was ultimately agreed between the parties, the President said that it demonstrated that there remained a need for greater clarity and guidance in relation to applications by journalists to vary/lift statutory reporting restrictions, and the purpose of the Practice Guidance is to meet that need. The President said he welcomes people’s views and suggestions to the consultation, which will close on the 30^th of June. You can find the draft guidance here. Whether it will boost news coverage of the family courts, as I understand is the plan, I have my doubts.

And finally, HM Courts and Tribunals Service (‘HMCTS’) and the Ministry of Justice have announced that video hearings are being tested in domestic abuse cases. The study by HMCTS at Manchester Civil Justice Centre means vulnerable people can appear before the court using a video link from a computer in their solicitor’s office, avoiding the distress of appearing in court at an already difficult time. This has been used in six cases so far and feedback from those involved has apparently been positive. Testing will continue in the family and civil courts during the coming months and is being independently evaluated. Justice Minister, Lucy Frazer, said: “We are hearing that, even in the early stages, testing fully video hearings are having a positive effect and ensuring the justice system is supporting people at one of the most difficult times in their lives. I look forward to seeing the evaluation of this work and ensuring we continue to improve access to our courts through new innovations.” An interesting development.

Have a good weekend.

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(California Court of Appeal) – Appellate court reversed the judgment terminating the parental rights of the mother. The mother suffered from addiction and agreed to let ex-husband assume full custody until she was able to get clean and sober. When the mother sought to regain custody, suit was filed against mother claiming she abandoned children. Appellate court said that there had to be an intent to abandon and there was not under these facts.

Prenuptial agreements are oftentimes misunderstood and provide a variety of advantages for couples who are considering marriage. Prenuptial agreements can protect the interests of both parties entering the marriage and are not just for couples with a significant amount of assets or for only the wealthy to consider.

Prenuptial agreements include the benefits of financial planning and clarifying responsibilities during the marriage, ensuring the new spouses are protected from the debts of the other and can also provide important protections for children from previous marriages or relationships, especially if a marriage comes later in life. Prenuptial agreements can help clarify how assets should be handled in circumstances of death and can avoid time-consuming and expensive disputes in the event there is a divorce.

There are a variety of legal complexities related to property and property division in Texas is it is helpful for the couple to be familiar with what these are. In addition, there are legal requirements to ensure the prenuptial agreement is valid that it is also important for couples considering a prenuptial agreement to be familiar with and ensure are taken care of. Without a prenuptial agreement, the parties will be subject to the state’s property division laws if they divorce.

Prenuptial agreements offer many advantages, including providing couples with more decisions-making power over their own affairs. Postnuptial agreements may also be an option couples should be familiar with and can consider. Because a prenuptial agreement can protect the interests of both parties, and offers so many advantages, couples considering marriage should be familiar with this important legal option.

As I am sure most family lawyers would agree, it is always worth listening to Mr. Justice Mostyn.  Recently the Hong Kong Family Law Association were treated to a speech by him on the subject of judicial discretion, and I wanted to share it with readers of this blog.

For the benefit of non-lawyers, judicial discretion refers to the situation in which the judge can apparently make any one of a range of possible decisions, having regard to the facts of the case. That is not to say that there are no limits upon what the judge can order, just that the decision can be anywhere in between the limits. As Mr Justice Mostyn explains, judicial discretion apparently exists in several areas of family law, but readers of this blog are perhaps likely to come across it in its most obvious form in the realm of financial remedies following divorce, where the judge can (seemingly) divide the assets in any way that he or she sees fit.

But does true judicial discretion exist, or is it just an illusion? Does it simply appear that the judge has full discretion, when they are actually just making a value judgment? Mr Justice Mostyn seeks to answer this question in his speech and concludes that, save in one situation, true judicial discretion does not actually exist in family law.

What, then, is the difference between an exercise of discretion and the formation of a value judgment? Mr Justice Mostyn says this:

“In a true discretionary situation, the court makes its pick from a range of choices none of which can be said to be exclusively right and none of which can be said to be wrong. In an evaluation the court is subjectively weighing concrete (“primary”) facts to determine the right result. If the required decision is a binary choice – a yes/no question – then, I would argue, the exercise is surely evaluative.”

Mr Justice Mostyn then examines how decisions are made in the various areas of family law in which judicial discretion apparently exists. For the purpose of this post, I will refer only to the financial remedies example.

Mr Justice Mostyn divides his argument between two factors that are at play in financial remedies cases: the ‘sharing principle’ (whereby, as a general guide, an equal division of assets between husband and wife should be departed from only if, and to the extent that, there is good reason for doing so), and the needs of the parties.

The application of the sharing principle, argues Mr Justice Mostyn, “is exclusively one of evaluation and there is nothing discretionary about it.” The process is to evaluate what assets of the marriage comprise ‘matrimonial property’ (i.e. essentially property acquired during the marriage), and to divide that property equally. There is no discretion involved.

Consideration of the needs of the parties, however, is the exception referred to above, where there is true judicial discretion. Here, the judge assesses the needs of the parties by reference to a number of factors. However, says Mr Justice Mostyn:

“This is not an “unfettered” or even a broad discretion. It is fettered and narrow. It is a discretion which is regulated by, and subordinated to, rules.”

Why does any of this matter? What difference does it make to those involved in family court proceedings?

Mr Justice Mostyn argues that:

“…most so-called discretionary situations are not in fact discretionary but require instead the formation of value judgments … such a process is fundamentally rules-based. In those situations where a true discretion is to be exercised, again, the process is always subordinated to clear rules and guidelines.”

And he goes on:

“In the realm of discretion why do rules matter? The answer is simple. It is so that like cases are treated alike, and so that lawyers can confidently predict the result of a case in order to give good advice about settlement.”

Hmm. I suspect that there will be quite a large proportion of family lawyers who would find this a little difficult to swallow. Throughout my career, the position of most family lawyers attempting to advise clients as to what financial settlement the court is going to order has been to explain that the judge has a discretion as to what order he or she can make, and therefore that makes it very difficult, if not impossible, to say precisely what order they will make. This is not intended to be a ‘cop-out’ by the lawyers, trying to avoid committing themselves to something they will not be able to deliver, but a statement of the reality of the situation.

Having said that, I do think that Mr Justice Mostyn has a point. In many cases the reality is that there is no real discretion – the judge’s decision does simply boil down to a value judgment, constrained by rules and guidelines. Lawyerly thinking along those lines may just make it a little easier to advise clients.

You can read the full speech here.

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As I mentioned here, the mother of Jayden Parkinson, who was murdered in 2013 by her former boyfriend Ben Blakeley, has called for a ‘domestic abuse register’ to be established, containing details of perpetrators of domestic abuse, violence and stalking. Blakeley, who had a history of violence against previous partners, strangled Jayden, who was then aged 17 and expecting his child, and was later convicted of her murder. He was given a life sentence, with a minimum term of twenty years. Jayden’s mother told the BBC that a system similar to the sex offenders register could have saved her daughter, saying that if Blakeley had been on a register Jayden would “be here now, because for all the agencies at the point when Jayden went missing, to them she was a pain-in-the-butt teenager… and if that register had been here, and they’d all looked at it, they’d have seen how vulnerable she was.” The question, of course, is whether we need such a register, and I look at that in my post.

As I reported here, research by a wealth planning company has found that 550 couples with net financial wealth of one million pounds or more each will divorce this year, and that these couples possess assets worth an average of some £3.48 million each. The research found that on average about 43% of those assets, worth more than one and a half million pounds, comprised private pension wealth. Financial wealth represented 20% of the assets, worth on average about £712,000; property wealth comprised 31% of the assets, worth on average about £1,075,000; and physical wealth represented 5% of the assets, worth on average about £186,000. Sadly, I may not possess anything remotely like this sort of wealth, but I can say that the figures emphasise the significance of pensions in high net worth divorces, and the need to obtain the best possible advice, both legal and financial.

A report by the House of Commons Housing, Communities and Local Government Committee into the funding of local authorities’ children’s services has found that children’s services in England are at ‘breaking point’, and need a £3.1 billion minimum funding boost by 2025. The report, which you can read here, said that as services tried to respond to growing demand amid severe funding pressures, many were reliant on the goodwill of staff, as local authorities grappled with budget cuts of 29% since 2010. Clive Betts MP, who chairs the committee, commented: “Over the last decade we have seen a steady increase in the number of children needing support, whilst at the same time funding has failed to keep up. It is clear that this approach cannot be sustained and the government must make serious financial and systemic changes to support local authorities in helping vulnerable children. They must understand why demand is increasing and whether it can be reduced. They must ensure that the funding formula actually allows local authorities to meet the obligations for supporting children that the government places on them.” Quite.

And finally, on the 1^st of May I received a press release from the Ministry of Justice that declared “Even more people set to benefit from online court reform”. The sub-heading told me that “New legislation making it even easier for court users to apply for small money claims or divorce online was unveiled in the House of Lords today”. The new legislation is the Courts and Tribunals (Online Procedure) Bill. Unfortunately, as at the time of writing, the Bill doesn’t appear to have been published, so all I can tell you about it is what the press release said, which isn’t that much. Apparently, the Bill will set up a new “judicially chaired committee tasked with developing new, simplified rules around online services in civil, family and tribunal proceedings.” It will also ensure that cases will be progressed more efficiently and allow financial savings made across the justice system. We are also told that “Easy to follow guidance will ensure online services are as simple as possible to navigate and increase access to justice while supporting the uptake of HM Courts and Tribunals Service’ online services.” Sounds wonderful, although quite what all of this will mean in practice, I’ve no idea. (Update: the Bill has now been published, here.)

Have a good weekend, and Early May bank holiday.

The post A week in family law: Domestic abuse, pension wealth, children funding and online courts appeared first on Stowe Family Law.