It Never Rains but it Pours

Published on: April 12, 2017
Financial Settlement Agreement

After something of a drought of developments in Family Law, the early part of 2017 saw a flood of various events, cases and announcements.

First of all we had the case of Briers.  This was another case where there had been a long delay between the grant of Decree Absolute in divorce proceedings and an application to the Court for financial provision.  Following the earlier decision in Vince vs Wyatt the Court of Appeal made it clear that the delay of an Applicant for financial provision would be a factor that the Court would take into account, particularly where there had been a significant change in the parties’ positions during the intervening period.

The second Court of Appeal decision was Mills.  The national press sensationally reported the case as one where a wife had received a financial settlement some years ago.  She had made a series of disastrous investments and had lost all of her capital.  She had then gone back to Court to get more out of her ex-husband.  What the press did not highlight was the fact that the wife had received the benefit of a lifetime maintenance Order from the husband whose income was significantly greater than that which the wife could ever hope to achieve.  During the intervening period the husband’s income had increased.  The Court of Appeal varied the maintenance Order in favour of the wife, upwards – but not to the extent that the wife sought.  The decision was based upon the parties’ income capacity at the time of the hearing, not upon the wife’s poor investment abilities.

Then came this firm’s case of Macfarlane.  Here, Mrs Macfarlane argued that she should have additional financial provision because she had given up her career (as a headmistress) at the husband’s request in favour of supporting her husband during the marriage.  The Court of Appeal was having none of it.

Another case before the Court of Appeal concerned a heterosexual couple who sought to argue that the Civil Partnership Act was discriminatory and in breach of their Human Rights in that the Act only regulated the financial consequences of a breakdown of a registered partnership relating to a same sex couple.  The Court of Appeal adhered to the earlier Court’s decision and rejected the couple’s argument.  The couple are now seeking to appeal to the Supreme Court – presumably enroute to the European Court where they would hope to achieve greater success.

More recently we saw a very rare event when a Judge refused to grant a Decree Nisi of Divorce to a wife on the basis of the husband’s unreasonable behaviour, stating that the wife’s allegations were “of the kind to be expected in marriage”.

The wife appealed to the Court of Appeal but her appeal was dismissed.  This decision is perhaps a timely reminder to all practitioners that our 44 year old divorce laws must still be complied with, even though they are grossly at odds with modern times.

On this same topic, the government has recently announced that it has no plans to amend our divorce laws in the foreseeable future and the same appears to be the case in respect of the ever rising clamour for provision to be made for separating cohabitants to be able to sort out their financial arrangements.  The work required consequent upon Brexit will no doubt keep the government busy for a number of years and so we must continue to make what we can for clients with the limited provision available.

Finally, on the subject of Divorce Petitions, the government announced the introduction of an online Divorce Petition pilot scheme to be operated at East Midlands Divorce Unit.  The scheme was supposed to be effective from the end of January.  So far the scheme does not appear to be in operation.  Even then, all that was envisaged was that a Divorce Petition would be prepared online, printed and then the printed version would be sent to the East Midlands Divorce Unit with the parties’ marriage certificate and court fee.  Even this very limited step to modernise court procedure seems to have hit problems at the first stage.

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