News:

Recent Developments in Family Law

Financial Disputes

1. In the recent case of Miller v Miller the House of Lords unanimously decided that the previous approach in short marriages of trying to put the parties into much the same position as they had been in prior to the marriage, was wrong. Now, even where the marriage has only lasted a year or two, the Court will look to achieve fairness based on what the parties had before the marriage and what they acquired between them. Some commentators have speculated that a rich person may now reflect long and hard before marrying someone of much lower wealth- especially as Pre-Nuptial Agreements have not yet been unanimously embraced by the Judiciary.

2. On the same day, the House of Lords gave judgment in the case of McFarlane v McFarlane. Mr McFarlane was an accountant with a significant income (over £500,000 per annum net). Mrs McFarlane had given up her career (as a solicitor) with the agreement and encouragement of her husband, to look after the home. In days gone by Mrs McFarlane would have maintenance for herself simply to cover her needs. This often led (usually) to wives presenting the Court with a long and enthusiastic list of what they considered to be absolute essentials in their lives to try to get a reasonable share of their husband’s income.

Not in McFarlane - the Law Lords said that in cases where a party’s income was more than sufficient to provide for the other’s needs, an award of maintenance should be based on three elements:-
1)Needs
2)Compensation (for the loss of benefits in the marriage)
3)Sharing the financial fruits of the marriage

Consequently, in such cases, awards for the lower earning spouse (usually the wife) will be much higher from now on.

The Law Lords also overturned the Court of Appeal’s decision that Mrs McFarlane’s order should terminate after four years. Mrs McFarlane’s maintenance order was therefore extended for the rest of her life or until remarriage (unless varied by a change of circumstance).

Cohabitation
There are also pitfalls for those who do not marry. In Oxley v Hiscock, the Court of Appeal decided that in cases where the home is owned by one party and the other claims an interest in it:
1. The Claimant must first establish that they have a justifiable claim. This can be done by proving that they and their partner had a common intention or understanding e.g. that a contribution of capital to the purchase price or development costs was intended by both parties to give the contributor a beneficial interest in the property.

2. The level of the claim, once it has been established, must be based upon the parties whole course of dealing in relation to the property i.e. the contributor will, in most cases, get more than just their capital investment back.

Children
There have been a number of recent cases where a parent has made the necessary application to the Court to take a child with them, permanently out of the Jurisdiction- but failed. In these modern times of generous worldwide mobility there has been a rapid raise in “applications to remove”. Most applicants are successful. The recent cases have failed because the applicant has not been able to show that the necessary infrastructure would be in place for the child in its new home- such as accommodation, education, finance and contact with the parent left in England. If you are contemplating such an application, plan it carefully and prepare a “scrapbook” with information at least about the significant factors above. The more information, the better the chance of successful outcome to the case.

August 2006

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