News:

Autumn Snapshots

Children

(i) In re B a husband tried to argue that his contact should be increased. The mother said that this was purely because he wanted to reduce his child support payments. The father made cross-allegations against the mother. The Court said it was not only inappropriate to make a Contact Order having regard to child support legislation but also that it would be unlawful to do so. (Readers will be aware that a Child Support Assessment is reduced by 1/7th for each night in the week – averaged over a year – that the child stays with the contact parent).

(ii) In re F the Court of Appeal stated that in child abduction cases:

a)The child should be given an opportunity to be heard – usually through an interview with the CAFCASS Officer.

b)The case should be brought to hearing within 6 weeks and that there should be no delay in perfecting and filing the Order made in consequence of that hearing.

Domestic Violence

New provisions came into force on 1st July 2007 which make it a criminal offence to breach a Non-Molestation Order made in domestic violence proceedings after that date. Previously a Power of Arrest was attached to a Non-Molestation Order where the Court was satisfied that there had been violence or threats of violence. Powers of Arrest are no longer required because the police now have an automatic power to effect an arrest. It should be noted that Occupation Orders are not affected and so Powers of Arrest still apply in relation to those Orders. Extra care must now be taken when drafting a combination of Non-Molestation and Occupation Orders and of course persons on the receiving end of such Orders must be clearly advised of the enlarged consequences of any breach.

Financial

(i) Earlier in the year the National Newspapers reported upon a case where a nominal (£1 a year) Maintenance Order had been made in favour of a wife in 1989 as part of an overall financial settlement. The wife received a sum of capital as part of that settlement. She moved to Australia and either through bad advice or bad luck, the capital that she had was lost in poor investments. In the meantime, her former husband had built up a very successful business. The lady concerned returned to England and, because she did not have any capital with which to purchase a property, she applied to capitalize the nominal Maintenance Order. The first Judge, hearing that she had nothing and that her former husband had assets of around £11 million, gave her £210,000. The newspapers reported this as “having a second bite at the cherry”. Strictly this was not the case. In any event, the husband appealed and on appeal the Court said that the husband should not be penalized for the wife’s misfortune and they made a Maintenance Order for £3,000 a year (no doubt based on the amount of interest that the husband could earn on his personal fortune). This was the correct way to deal with an application for variation of an Income Order.

(ii) In S v S (a case decided after the Charman decision), there were assets of around £2 million. The District Judge ringfenced certain assets which had been inherited by the wife and this created a 17% differential in the division of the matrimonial fund. The husband appealed and Mrs Justice Baron said that this was not a big money case (which might come as a surprise to those of us who live in the provinces) and she proceeded to divide everything equally, stating that over time monies inherited during the course of a marriage become merged within the matrimonial “kitty”.

December 2007

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