Not-quite-death knell for joint lives maintenance

Just when family lawyers thought that we were out of joint-lives maintenance orders, a recent case has brought us back in.

In Quan v Bray [2018] EWHC 3558 (Fam) , heard in the latter stages of 2018, Mr Justice Mostyn decided that in the particular circumstances of this case, particularly that the wife would not be able to adjust to the termination of spousal maintenance without undue hardship, an order was appropriate for the payment of spousal maintenance for the husband and wife’s joint lives.

This decision is in stark contrast to recent cases; in particular the case of Waggott v Waggott [2018] EWCA Civ 727 which many family lawyers thought had ‘sounded the death knell’ for joint lives spousal maintenance orders.

The issue of spousal maintenance (formally known as periodical payments orders) is governed by section 23 of the Matrimonial Causes Act 1973, subsection(1)a) providing that the court may make “an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order”

Theoretically, the ‘term’ for such payments is not defined and so one party to the divorce can be ordered to pay maintenance to his or her spouse for the rest of their lives. The reaction to this from the potential payee is often one of horror; however section 25A gives some degree of respite by stating: “it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable”.

This is more commonly known as the ‘clean break’ and following the case of Waggott v Waggott it was thought that the court would from now on be more ready to move away from joint lives orders and instead favour a clean break between divorcing couples as soon as possible. Quan v Bray suggests otherwise.

So what does the recent decision tell us? Well, as ever, every case is different. The fact remains that despite the case law, the statute still provides the mechanism for spousal maintenance to be paid for the rest of the divorced couples’ lives. The family court has a huge range of discretion and in cases where one person may not be able to adapt financially to a life away from their former spouse, a longer and in some circumstances indefinite order for maintenance can be made.

Andrew Smith

Andrew Smith
Associate Solicitor
Family Law Team
AJSmith@LawBlacks.com
0113 3222807
@AndyLawBlacks

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‘Christmas Day becomes Divorce Day’

As 2018 drew to a close and people celebrated the start of a New Year, others began the divorce process as it was revealed that a total of 455 applications were made between Christmas Day and New Year’s Day. 26 people submitted applications on Christmas Eve, 13 on Christmas Day, 23 on Boxing Day and 77 on New Year’s Day.

Ammanda Major from relationship support charity Relate comments on the statistics indicating that the additional stress of Christmas triggers a problem as “Pressures can build up when people are spending an extended period of time together”. The introduction of the online divorce application process is likely to have helped spouses in this predicament.

What impact has the online divorce petition service had on divorce rates?

Since May 2018 spouses have been able to complete the divorce application process using the internet. The online divorce petition service has allowed those wishing to obtain a divorce an easier access to these means. The service provides access for couples seeking a divorce at all times of the year. The ability for an application to be filled in online, fees paid through the system and documents uploaded means that there is no delay for spouses in sending the divorce paperwork. The ease and speed of this process in a few clicks may have attracted those over the Christmas period.

The online service has apparently resulted in a reduced number of errors in application forms. Records show that there has been a decrease from 40% to 1%. The popularity of the service is proven by the 23,000 applications which have been made since this service was launched with 85% of users being apparently satisfied with this service and the additional introduction of the online civil money claims service.

What does this mean for divorce rates in the future?

Divorce rates for opposite-sex couples in England and Wales are still at their lowest level since 1973, according to the latest figures published by the Office for National Statistics. In 2017, there was a decrease of 5% on the previous year. The steady decline in marriages could be down to the increasing number of couples choosing to cohabit. The online divorce petition service is however, likely to make it an easier process to begin the divorce process and may result in rates increasing.

Why seek assistance from a solicitor?

The need and support of a solicitor is however not to be forgotten, and there is still a consensus they will always be required in the divorce process. The filing of divorce petitions may not be as simple for some, for example spouses having name complications on marriage certificates or the need for assistance in the difficulty of having to prove adultery. These issues can be unsettling for clients to undertake alone and the online service is lacking in the provision of support and assistance. Some applicants have experienced the Court ’losing’ petitions resulting in months of delays. Petitions relying on adultery have also resulted in defended divorces due to the lack of admission and no proof. It is therefore crucial spouses do their research and benefit from the support that solicitors offer before committing their full reliance online. There are various nuances regarding the completion of divorce petitions which are not always apparent from the application form or indeed the additional guidance. It is very important not to rely on the internet and only the internet as unfortunately not all cases will proceed efficiently.

Ellie Stansfield

Ellie Stansfield
Paralegal
Family Law Team
EStansfield@lawblacks.com
0113 322 2855

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GDPR – Organisations Continue To Adapt

GDPR and the Data Protection Act came into force in May 2018.  There was some sense of foreboding as we built up to the introduction, there was no transition period just a new and extensive set of rules and regulations to replace and update the Data Protection Act 1998.  The legislation is not a one off exhortation to get data protection issues sorted but a new set of rules that apply and will continue to apply, backed up with an enforcement regime in the form of the ICO.  The legislation was introduced to cope with the significant developments in the way data can now be collected, used and transferred.

Many businesses started early but in my experience many left it to around Christmas 2017 to start to introduce new systems and educate employees to work towards compliance.  If the 1998 Act was being followed then this was a solid platform in terms of the requirements of GDPR. A number of high profile data breaches have shown why the legislation should be an integral part of commercial life.

We have had many requests for advice on various parts of the new legislation. Here are just a few thoughts based on those requests:-

  1. Employee engagement can still be patchy, in many cases a data breach will be down to human error.  Organisations should continue to prioritise data protection.  The fines can be significant.
  2. There is an unnecessarily cautious approach in relation to reporting data breaches and this is reflected in comments by the ICO.  The legislation sets out when a report should be made and not every breach should be reported to the ICO.  There is clearly some misunderstanding here in relation to the legislation.
  3. Equally there may be under-recording in your own internal records.  A data breach should be noted, even if it isn’t reported to the ICO.  Organisations should maintain a data breach register.
  4. Data breaches are happening everyday around the country, one common example being emails incorrectly addressed.  Again, this is about employee training and engagement.  As an example, an email chain should not be forwarded unless it has been previously checked for the personal data of a third party.  Good habits will take time.
  5. We should all treat the data of our clients and customers as we would expect our own data to be treated by organisations we hand it over to.  Personal data is not just digital personal data but also paper copies and paper may be left lying around or carelessly discarded.  This is basic stuff which the ICO wouldn’t be impressed with if there was a serious data breach.
  6. The Morrisons’ litigation has upped the stakes as far as Employers are concerned.  It appears that Companies can be vicariously liable for a malicious data breach by an Employee.  In the Morrisons case this prompted group litigation against the Company.  There is no need in these cases to show a direct financial loss.  Whilst group litigation is difficult to organise and bring under the new rules, there will be claims companies looking out for appropriate cases and who will monitor the ICO’s website in relation to data breaches.
  7. The ICO has good public engagement and publishes information on a regular basis including on its website and through blogs.  You can sign up to receive its updates.
  8. The ICO is quite happy to go after public bodies as part of its role having recently issued an Enforcement Notice against the Metropolitan Police in relation to its Gang Matrix.  This can be found on its website.  It is an interesting example of the ICO working through the data protection principles and identifying breaches against these.
  9. The Data Subject Access Request Rules have changed and you should have procedures in place to deal with these.  There is no requirement to make a request in a particular format so there should be some process in place to identify a request and for the appropriate people to deal with them.  If the request is extensive you can extend the period for a response by up to a further 2 months under the Data Protection Act 2018. An employer who receives a confidential employment reference can refuse to disclose it, this is a change to the rule in the 1998 Act.
  10. There is probably an underuse of data sharing agreements where data is shared by a data controller.  These agreements need not be complex in most cases but steps should be taken.  Equally, privacy notices should be used and issued where appropriate, including to employees and potential recruits to a business.  There should be a regular review of privacy notices.  Particular care should be taken when you are processing sensitive or special category data such as medical records.
  11. There have been some fines under the old rules which would have been much more significant under the new legislation.  Fines can now be up to €20,000,000 or 4% of global annual turnover.  The Uber case was the subject of a ICO press release on 27 November 2018.  This is an interesting read in terms of the approach that the ICO takes.  Uber was fined £385,000 under the old rules but this would have been much higher if the breach had taken place after 25 May 2018.  We shall watch with interest how the situation develops in relation to the Marriot Hotel breach where the records of 500 million customers have been compromised in a data breach.
  12. There may be some confusion as to whether an organisation needs a formal appointment of Data Protection Officer. If a DPO is appointed then there should be some degree of independence associated with the role.  Your IT provider should not also provide DPO services.
  13. Organisations should look at the use of Data Protection Impact Assessments.  The legislation sets out instances where these might be required including the introduction of new technology.
  14. Don’t forget your email and other electronic marketing is not only subject to GDPR but also the Privacy and Electronic Communications Regulations.  These are due an update but the existing Regulations continue to apply.

Keep an eye on your data, your systems and your documents to ensure Employee engagement in 2019 and beyond.  Data protection should be dealt with at a senior level and be a permanent feature on management agendas.

Iain Jenkins

Iain Jenkins

Iain Jenkins
Legal Director
Employment Team
0113 227 9308
IJenkins@LawBlacks.com

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Parental responsibility and your child’s education

If your child is approaching school age and needs to start school in September 2019 you need to complete your application for their place at a primary school soon (the deadline for admissions being 15 January 2019).

But what if there is a disagreement on aspects of a child’s education?

Choosing a child’s school

All those with Parental Responsibility (PR) for a child have the right to be involved in major decisions about that child, including in relation to the child’s education.   It is important to remember that although it is often the child’s biological parents that have PR for a child in some circumstances others may share PR, like a step-parent, guardian or grandparent.

If your child usually lives with you, you may be used to making day-to-day decisions about their arrangements.  Once you start thinking about school applications you may find it helpful to discuss your intentions with the other parent (or those with PR) as soon as possible. This might include you discussing your reasons for selecting a particular school, inviting them to visit the school and sharing important information about the school.  Ideally you will be able to agree on the proposed school and make the relevant application together.

If agreement can’t be reached:

Of course things are not always that simple and if agreement is not reached, you may need assistance to resolve matters.

You may wish to instruct a solicitor to correspond on your behalf about the arrangements for the child. Your solicitor can also discuss with you other forms of dispute resolution, such as mediation or collaborative law.

If agreement is not reached, either parent may decide to make a court application for a Specific Issue Order, for the Court to determine the specific issue about the child’s schooling.  If an application is made, the Court will order what they think is in the child’s best interest; the child’s welfare being the Court’s paramount consideration. The Court’s decision will still have to take into account the school’s availability to accommodate the child.

It is important to seek legal advice in advance of issuing an application at Court as, once the Court are involved with the child, they could make other orders about the arrangements for that child, even if that wasn’t the intention in your initial application.

Charlotte Gannon

 

Charlotte Gannon
Solicitor
Family Law Team
CGannon@LawBlacks.com
0113 322 2852
@CGLawBlacks

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When tough talk becomes reality: the UK’s new immigration policy

After much apparent internal division within Cabinet, the Government today released its White Paper on the UK’s new immigration policy. The headline features, which may alarm businesses, are that there will be no preferential treatment for EU nationals and that there will be an as- yet- undetermined minimum income threshold, potentially at £30,000, which would restrict migration to higher earners.

Brexit and EU citizens’ rights

EU nationals can, for the time being at least, come to the UK under free movement provisions and take employment of any kind, thereby providing a fluid labour market for UK businesses, responsive to the needs of the economy.

Following Brexit, however, all EU nationals will be subject to the new EU Settlement Scheme, the mandatory system of registration for all EU nationals.  If there is a deal then free movement will be preserved for EU nationals arriving up until 31 December 2020. If there is no-deal, however, then free movement will end on 29 March 2019 and only EU nationals resident in the UK by that date will be eligible for the Scheme.

The White Paper

Currently non-EU nationals looking to work in the UK must be sponsored under Tier 2 of the points-based system.  Tier 2 is reviled by business leaders for being highly bureaucratic, costly and restrictive in terms of who can be brought over. Yet alarmingly, the government proposes to extend the sponsorship system to EU nationals.

Granted, there are some limited liberalising measures: out goes the monthly allocation limit and the requirement to fulfil a ‘resident labour market test’, a means to demonstrate a position cannot be filled by a settled worker.  The general minimum skill level is also lowered from RQF level 6 to 3, allowing for lower skilled workers, in theory, to qualify for the Scheme.

This skills reduction is potentially illusory, however, given the move to have a consultation on the minimum income threshold, which the Prime Minister favours to be a whopping £30,000. Such a measure would restrict available positions to EU nationals to higher paid jobs in the 25th percentile of earnings.   Moreover, employers will have to bear high costs to employ EU migrants.  This includes the Immigration Skills Charge, at £1,000 per year per migrant.  To top it off, the sponsoring employer must have water-tight HR systems in place or risk their licence being potentially revoked following an unannounced visit – a measure which would immediately terminate the employment of all sponsored employees.

Louis MacWilliam

Louis MacWilliam

Louis MacWilliam
Associate Solicitor
Business Immigration Team
LMacWilliam@lawBlacks.com
0113 322 2842
@LouisLawBlacks

Posted in Business Immigration | Leave a comment

Home Office drop Tier 1 suspension bombshell (followed by a swift and silent back-track)

On 5 November 2018 came the seemingly out of the blue announcement that the Tier 1 Investor visa route was to be suspended in two days’ time.  The media had been briefed overnight with all major outlets running prominent pieces about this dramatic development.

Wealthy individuals, and immigration practitioners alike, went into panic mode, as it appeared that the primary route for rich migrants seeking visas to the UK through investment was being closed down.  However, five days after the supposed suspension, it transpired that the Investor route had in fact not been suspended after all.  And how did the Home Office communicate this U-turn? Through a three-line email which emerged from correspondence with the Immigration Law Practitioner’s Association.

With this ‘non-suspension’, however, came various clues as to how this scheme will look in the future. And the Home Office has confirmed that reform is coming and a further announcement will be made in due course.

Background

The Tier 1 Investor route was introduced in 2008 under the points-based system. In the first three quarters of this year, 284 initial Investor visas were granted. Under this route the key requirements are that the individual has held at least £2 million, for three months prior to applying, for the purposes of investing in the UK. Unlike with other visa categories which lead to settlement, there is no English language requirement.

What will change?

When the route was [not] closed down last week, the Home Office stated the route was being suspended pending the introduction of new measures, including:

  • comprehensive auditing of the migrant’s financial and business interests by a UK firm;
  • a requirement to have held the £2 million for two years, rather than three months at present;
  • excluding investment by way of gilts; and
  • investment by way of pooled, government supported investments, including in small and medium-sized businesses.

Why last week?

These changes might attract public sympathy; hence the fanfare of suspension, but it still seemed a strange time to be taking such action, amidst the turmoil of Brexit wholesale changes to immigration which are around the corner.

The principle behind the Tier 1 Investor route is to facilitate the entry to the UK of ‘high-net-worth individuals making a substantial financial investment in the UK’.  However, as far back as 2014 the MAC noted that, beyond this self-evident statement, the underlying policy objective of the Investor route was “not readily apparent”.  The report was particularly critical of investment by way of gilts, unsurprising perhaps, given that a gilt is merely a loan to Government which is then returned to the investor at a given period. The MAC noted that it was the investors themselves who benefitted from the visa, rather than the UK.

But these findings were made back in 2014 and seemed to cause little consternation to the Government, until now. Does this go back to the Salisbury attack, following which the Home Office committed to reviewing the right of more than 700 wealthy Russians to live in the UK? As I wrote about in an earlier piece, the Salisbury attack appeared to directly lead to Roman Abramovich’s visa application being put on hold.  The man whose reputedly ill-gotten gains were welcomed with open arms was now outcast (he is now an Israeli national and has reportedly withdrawn his Investor visa).

Regardless of motive, the manner in which this has been handled seems rather incompetent, even by Home Office standards.  The highly-politicised area of immigration law is already absurdly complex and opaque, without the Home Office not only committing a U-turn, but then failing to properly tell anyone about it!

Louis MacWilliam

Louis MacWilliam

Louis MacWilliam
Associate Solicitor
Business Immigration Team
LMacWilliam@lawBlacks.com
0113 322 2842
@LouisLawBlacks

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Recovering rent arrears – make a choice and stick to it!

A recent case (Thirunavukkrasu v Brar and another [2018] EWHC 2461 (Ch)) has confirmed what property litigators have long suspected – that is, if a commercial landlord exercises the “CRAR” procedure (see below for further detail), and then attempts to forfeit the lease for the same arrears, the forfeiture will be unlawful, the lease will continue and the tenant will have a claim for damages against the landlord.

What is CRAR? What is forfeiture?

Two of the most common remedies available to commercial landlords when dealing with a tenant who has failed to pay its rent are “CRAR” and forfeiture.

CRAR – CRAR (short for Commercial Rent Arrears Recovery) is a statutory procedure contained in Part 3 of the Tribunals, Courts and Enforcement Act 2007 (“2007 Act”).  Essentially, it allows a landlord of a commercial property to instruct enforcement agents to enter the property, seize goods belongings to the tenant and sell them in order to recover the value equivalent to the rental arrears.  There are various statutory requirements which must be satisfied.

CRAR is similar to the common law remedy of distress (which was abolished by the 2007 Act).

Forfeiture – most commercial leases contain a provision which allows the landlord to forfeit the lease in the event of rental arrears or other breaches of covenant.  The effect of forfeiture (provided it has been undertaken correctly) is that the lease terminates. A landlord can forfeit a lease either by issuing proceedings or by peaceable re-entry (i.e. by changing the locks at the premises). 

Waiving the right to forfeit

Forfeiture can be tricky to get right.  Once the right to forfeit has arisen, then the landlord must not do anything which acknowledges the continuation of the lease. If they do, they will waive their right to forfeit. This would render any subsequent attempt to forfeit unlawful.

For example, if a tenant is in arrears of the March quarter’s rent and the landlord then makes a demand for the June quarter’s rent, the landlord is likely to have waived its right to forfeit for the March quarter’s rent because the June quarter demand acknowledges the lease is continuing. However, if the tenant fails to pay the June quarter (and provided the landlord does nothing to acknowledge the continuance of the lease), the landlord may still be able to forfeit for the June quarter’s rent.

It was previously accepted that distress would waive the right to forfeit for the arrears in question.  A question mark remained over whether exercising CRAR would have the same effect.

What’s new?

In this case, the parties had entered into a lease in 2013 which provided, amongst other things, that rent was payable quarterly. The lease also contained a forfeiture clause allowing the landlord to forfeit the lease if any rent remained unpaid 21 days after it was due.

The tenant failed to pay the rent due on 25 December 2015. In January 2016, the landlord instructed enforcement agents to recover the arrears by means of CRAR.  On 1 February 2016, CRAR was exercised.  In the meantime, on 12 February 2016, the landlord purported to forfeit the lease by attending the premises and changing the locks.

The tenant brought a claim against the landlord seeking a declaration that the landlord had unlawfully forfeit the lease (because it had exercised CRAR) and damages for trespass.

The tenant was successful at first instance and the landlord appealed.  The High Court found that although there are material differences between CRAR and distress, the exercise of CRAR amounts to an election by the landlord to treat the lease as continuing and thus the right to forfeit had been waived.

Practical points

Where a tenant is in arrears of rent it is always worth a landlord considering its options carefully before taking any action.

Taking action to recover arrears may well mean that they cannot then forfeit the lease.

If a landlord is considering forfeiting the lease, then they would be well advised to take legal advice before doing so to ensure that there is no possibility of a claim by a tenant.

Rachael Donnelly

Rachael Donnelly
Associate Solicitor
Property Litigation Team
RDonnelly@LawBlacks.com
0113 207 1094

Posted in Commercial Dispute Resolution | Leave a comment

Marriott announce data breach of information for as many as 500 million people

The Marriott Hotel chain (“Marriott”) announced on Friday 30 November 2018 that information contained in its Starwood brands guest reservation database was compromised. Unauthorised access occurred in connection with reservations at Starwood properties on or before 10 September 2018, potentially dating back to 2014.

Marriott received an alert from a security tool on 8 September 2018 which indicated an outside force was attempting to access Starwood’s guest reservation database. The company consulted external security experts, who determined hackers had accessed the database for up to four years. The hackers during this time apparently copied and encrypted guest information and “took steps towards removing it”.

A firm statement was issued as follows:

“It contains information on up to approximately 500 million guests who made a reservation at a Starwood property. For approximately 327 million of these guests, the information includes some combination of name, mailing address, phone number, email address, passport number, Starwood Preferred Guest (“SPG”) account information, date of birth, gender, arrival and departure information, reservation date, and communication preferences. For some, the information also includes payment card numbers and payment card expiration dates, but the payment card numbers were encrypted using Advanced Encryption Standard encryption (AES-128).”

Marriott has mentioned it is still investigating the breach by working with law enforcement and “has begun notifying” regulatory authorities about the incident. This may well include the UK’s Information Commissioner’s Office as well as data commissioners from other EU states.

The GDPR requires firms to report within 72 hours a data breach involving information about EU citizens. It is unclear at present precisely when Marriott began alerting regulators about this incident and also what percentage of the breached data is that of EU citizens.

Marriott now potentially face a fine under GDPR which could be upto 4% of their global revenue or 20 million Euros (whichever is higher).

Tate Chakrabarty

Tate Chakrabarty
Associate Solicitor
Corporate and Commercial Team
TChakrabarty@LawBlacks.com
0113 227 9260 

Posted in Company & Commercial Law | Leave a comment

Directors’ duties: Staying shipshape

If we think about companies as ships, then company directors are a ship’s captains.  They are tasked by shareholders of the company with plotting their precious vessel’s course to success while navigating choppy commercial waters, and perhaps dealing with an unruly crew.

To do this, like any captain, a director needs to be imbued with considerable powers to allow them to make day to day decisions on board.  Yet, what is often overlooked or misunderstood are the duties a director owes a company, which come as part and parcel of those powers.

The duties

For centuries, directors have owed a duty of care to companies, but the main directors’ duties were finally codified by the Companies Act 2006 (“CA 2006”).  The duties are:

  • to act in accordance with the company’s articles and only to exercise powers for the purposes for which they are conferred;
  • to act in good faith to promote the success of the company for the benefit of its shareholders;
  • to exercise independent judgment;
  • to exercise reasonable care, skill and diligence;
  • to avoid situations where the director has or could have a direct or indirect conflict of interest;
  • not to accept a benefit from a third party that is given to the director because they are a director of the company, or where the benefit is (or could be) intended induce the director to act in a certain way; and
  • to declare to other directors if they have an interest in a proposed transaction or arrangement the company is to enter in to.

What’s more, directors should also be aware that in addition to the CA 2006 duties, a company’s articles may dictate what a director can and can’t do.

Consequences of breach

If a director breaches one or more of the general duties, the company may have grounds sue the director (acting by either the other directors or the shareholders), and potentially that director could then be disqualified from acting as a director in the future.

Directors can also incur criminal liability for, among other offences, insider dealing, bribery, health and safety offences, and very scarily – gross negligence manslaughter.

Clearly either of these outcomes could be disastrous for that director’s finances and career.

What if the ship sinks…?

In larger companies there’s often a distinction between directors and shareholders but what if you’re the captain of a ship you own?  It is usual in SMEs and family-run companies for the directors and the shareholders to be one and the same.  Surely you can sail your ship anywhere and any way you want, accountable to no man as you hunt your treasure…?

This is all well and good…until the ship sinks.  Unfortunately the Insolvency Act 1986 was not drafted with romantic maritime analogies in mind.  If a company goes in to liquidation a Liquidator will scour the dealings of the company looking for any breach of directors’ duties; and if they find one, they may seek to sue that director on behalf of the company’s creditors, meaning the captain may well go down with the ship.

Directors who are unsure of the extent of their duties – and who want to keep their feet dry – should seek appropriate advice, especially if they feel a storm is coming.

Alex Hall

Alex Hall
Legal Executive
Corporate and Commercial Team
AHall@LawBlacks.com
0113 227 9239

Posted in Company & Commercial Law | Leave a comment

Modernising the court’s approach to Financial provision on Divorce

On 23rd November the House of Lords will hear the committee stage of the Divorce (Financial Provision) Bill.

The law regarding financial provision on Divorce remains subject to a statute which is now 45 years old (Matrimonial Causes Act 1973). Some might say therefore that the law is somewhat outdated.

The Bill seeks to bring the legislation into line with more modern approaches to family law and 21st century relationships with reference to issues such as nuptial agreements (pre and post) and pre-acquired assets.

There are four main areas suggested for reform as follows:

“Matrimonial property”

The Bill proposes that financial orders will be limited to matrimonial property which was acquired during the marriage; otherwise than by gift, inheritance or succession from a third party; and does not represent property acquired before the marriage.

The Bill goes further to describe what will then determine such matrimonial property and attempts to make the law clearer as to what can be deemed to be matrimonial and non-matrimonial property. Interestingly, the Bill appears to address developing issues in case law such as special contributions and personal skill and efforts of one party.

“Pre-nuptial and post-nuptial agreements”

Prevailing case law suggests that whilst still not statutorily binding, providing that the proper processes are followed then nuptial agreements will be binding on the parties. The law is still developing with every case and so the Bill goes further to define in what circumstances an agreement will be binding; the relevant subsections largely following the decision in the landmark case of Radmacher v Granatino [2010] UKSC 42.

“Value of the Matrimonial property”

The Bill refers specifically to the “net value” of the matrimonial property being shared fairly between the parties. It goes further than the current legislation by also referring to the deduction of any debts incurred before the marriage relating to matrimonial property or during the marriage.

Similar to the provision regarding matrimonial and non-matrimonial property, this particular provision also makes direct reference to case law principles such as the dissipation of any matrimonial property.

Of further interest is the provision for an assessment of needs of any children of the family under 21 which is an extension from 18; no doubt recognition of modern families where children are reliant upon their parents for longer.

“Periodical payments and lump sums”

Plenty of cases have hit the news in recent years remarking on the ‘meal ticket for life’ nature of spousal maintenance. The Bill seeks to more clearly define in what circumstances spousal maintenance will be ordered, for how much and for how long.

Attention should be drawn in particular to the provision which provides for payments to be made for “a period of not more than five years from the date of the decree of divorce, such period not to be exceeded unless the court is satisfied that there is no other means of making provision for a party to the marriage and that that party would otherwise be likely to suffer serious financial hardship as a result”.

The Bill is on its second round of the legislative process and has been met with some resistance historically, due to concerns that the provisions will cause unnecessary hardship.

The Bill does strive to introduce more clarity. There appears to be a mix of the wide discretion provided by the factors within section 25(2) MCA 1973, together with specific references to how the individual orders will be determined, seemingly reflecting on case law principles which have developed over time.

It is questionable however if this will make things clearer or introduce more conflict over the interpretation of the individual clauses. Whilst the 1973 Act does have its faults and limitations, the wide discretion afforded to the Judiciary does at least continue to uphold the principle that every family is different and one size does not fit all.

Family lawyers will continue to watch the development of the Bill with interest.

Andrew Smith

Andrew Smith
Associate Solicitor
Family Law Team
AJSmith@LawBlacks.com
0113 3222807
@AndyLawBlacks

Posted in Family Law | Leave a comment