The practicalities of parenting apart after a divorce or separation are a challenge for any family but what happens when one party decides to move away from the area permanently?

This issue was explored in the recent case of Re C (Internal Relocation) [2015] EWCA 1305. The mother had successfully applied to the court for an order allowing her to move with her daughter from London to Cumbria while the child’s father, from whom she had separated, remained living in London. The reason given for granting the order was that remaining in London was “much less conducive to C’s well-being than is the move to Cumbria”.

The father appealed (unsuccessfully) but the Court of Appeal’s judgment helpfully tied up a few loose ends which had existed in this area of family law.

Historically the court’s approach had been to distinguish between cases where the move was out of the jurisdiction (external relocation) and cases where the move was within the United Kingdom (internal relocation).

With external relocation the application by the parent wishing to move is based on the Children Act 1989 section 13 (b) which says that when there is a child arrangements order in force, no one may remove the child from the United Kingdom without the consent of the other parent or permission from the court.

With internal relocation the application is brought under section 8 of the same Act for a specific issue order. This is where the court is asked to decide ad hoc disputes when parents cannot agree over the issue in question.

The leading case on external relocation is Re K (Children) [2011] EWCA Civ 793. In this case, about a removal to Canada, the court said that the child’s welfare was the most important factor. The so called ‘Payne Factors’ as stated by Lord Justice Thorpe in Payne v Payne [2001] EWCA Civ 166 were said to be guidelines only. Those factors were:

“(a) Pose the question: is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life. Then ask is the mother’s application realistic, by which I mean founded on practical proposals both well researched and investigated? If the application fails either of these tests refusal will inevitably follow.

(b) If however the application passes these tests then there must be a careful appraisal of the father’s opposition: is it motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? What would be the extent of the detriment to him and his future relationship with the child were the application granted? To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?

(c) What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

(d) The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration, directed by the statutory checklist insofar as appropriate.”

In internal relocation cases the state of the law prior to Re C was that there was a general reluctance to place restrictions on the freedom of the child’s primary carer since these restriction were likely to have an adverse effect on the child indirectly (it was noted in Re E (Residence: Imposition of Conditions) [1977] EWCA that restriction might be necessary where the ability of the primary carer to give satisfactory care was in doubt).

The first loose end tied up by Re C was that there should be no distinction between cases involving the relocation of a child within the jurisdiction and those where a parent seeks to relocate with a child to another jurisdiction. The decision in either type of case hinges ultimately on the welfare of the child.

Of the Payne guidelines it was agreed that some or all of the considerations are likely to be helpful, not as a prescriptive blueprint but as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

The question of a principle of exceptionality had previously arisen in the case law on internal relocation where the relocation of a child could only be prevented in exceptional cases. A possible illustration of exceptionality appears in Re F (Children) [2010] EWCA Civ 1428, also known as the ‘Orkney case’. In this case the mother wished to relocate with her four children and new husband from Cleveland in the North East of England to Stronsay, one of the northernmost islands in Orkney. The recorder in the first instance said: “What the mother is proposing can be properly described as ‘truly exceptional’. It is as close to a case of removal from the jurisdiction as one could possibly get. Stronsay must be one of the most remote inhabited places in the United Kingdom”. The planned contact arrangements with the father described travel by plane, ferry, train and car lasting between 9 and 19 hours. This application and the subsequent appeal were unsuccessful.

In Re C however it was confirmed that there was no such “exceptionality” rule. The parent objecting to the move does not have to demonstrate exceptional circumstances to prevent a relocation application.

The final issue to be ironed out was that of the interference with either party’s human rights as conferred by the Human Rights Act 1998, for example Article 8, the right to family life. The judges in Re C concluded that there was no obligation upon a court to consider whether the resulting interference with Article 8 rights of a parent was proportionate. Consideration of each parent’s Article 8 rights “should be an essential part of the balancing exercise itself and should not be undertaken separately so as to disrupt a joined up decision making”.

In other words, the welfare of the child is always the trump card. It leaves uncertainty as there is no hard and fast rule and judges all have a discretion but it gives flexibility to the court to consider a bespoke child-centred outcome to each case.

 

An interesting case which demonstrates how nuptial agreements are dealt with by the courts following the Radmacher decision in 2010 is Hopkins v Hopkins [2015] EWHC 812 (Fam). In this case the husband asked the divorce court to adjudicate on why the wife should receive a higher financial settlement than what was agreed in a post-nuptial settlement signed by the parties earlier in their marriage.

The couple, both in their sixties by the time they divorced, shared a complicated relationship history spanning four decades. They met in their twenties when they were both married to other people, each with young children, and had what was described by lawyers as a “clandestine affair”. They had a child together but did not marry then. Mr Hopkins continued to live with his first wife while Mrs Hopkins moved into a house provided by him with both parties contributing financially to the renovation. Mrs Hopkins divorced her first husband and then entered into a second marriage lasting thirteen years. She got in touch with Mr Hopkins after many years, seeking assistance with their son’s university costs. Their relationship was then reignited and they began living together, each ending their respective marriages. After one further separation and reconciliation they got married to each other and then divorced after three years.

The post-nuptial agreement was signed after difficulties emerged in their marriage and was stated to be drawn up “to limit and define appropriate provision in the event of marital breakdown between the parties”.

In the divorce court case Mrs Hopkins argued that she should not be bound by the post-nup since it was signed by her under duress. She asked the court to take her “emotional state and what pressures she was under to agree” into account. She said that she signed the agreement because she was, in effect, bullied into it by Mr Hopkins.

The court case lasted for three days and the Judge decided that the post-nup should be enforced, that it was entered into freely by Mrs Hopkins and further that it was fair in all the circumstances. This judgment came after more than three quarters of a million pounds had been spent on legal fees between the parties.

So, what factors determine the weight to be given to a pre-nup or a post-nup? The Judge in the Hopkins case referred to the landmark 2010 case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42:

It must be entered into by each party of their own free will, without undue influence or pressure and each party must be informed of its implications, with sound legal advice being “desirable” (Radmacher paragraphs 68 and 69).

Mrs Hopkins asserted that she only skim-read the letters from her lawyers and therefore did not fully take on board the implications of the agreement. The judge did not find this to be credible.

She also asserted that Mr Hopkins had “got her by the throat physically” during a heated discussion about the agreement and that he had dictated certain emails to her lawyers, included in the evidence. The Judge, although not satisfied that there was not some physical tension between them, decided that it was not enough to have the effect that she was incapable of making up her own mind about signing the post-nup (after discussions which spanned six months). As for the dictated emails the Judge found that on the balance of probabilities it was not the case that they were dictated by Mr Hopkins.

Full disclosure of the other party’s assets “may be necessary” to ensure that a party understands the implications of the agreement, but, “if a party is fully aware of the implications of an agreement there is no need to accord reduced weight to it because they are unaware of those particulars” (Radmacher paragraph 69). In the Hopkins case, although it took several months, the husband’s lawyers did send through disclosure before the agreement was signed, after which the wife’s lawyers wanted to amend the agreement but the wife stated in an email “I am happy for the draft to stay as it is”.

The couple’s age, maturity and experience all counted in favour of the agreement being upheld, as did the detailed legal advice received (also over several months). Her lawyers confirmed “what makes it watertight is that you have been advised…”

An agreement, such as Mr and Mrs Hopkins entered into, would be upheld only if it is fair in all the circumstances and, the fact of the agreement is capable of altering what is fair (Radmacher paragraph 75).

The original proposal of the agreement to Mrs Hopkins was two mortgage free properties and a car. This developed after discussions so that under the post-nup she received two properties, a car, a pension share and £200,000 in a case where the husband was described as “a very wealthy man with assets probably exceeding £30m”. This was deemed a fair provision by the courts under these circumstances.

What the case illustrates is a robust testing of the strength of the Radmacher safety net and shows that those seeking to rely on such an agreement must ask themselves: ‘is it watertight?’.

 

For unmarried, cohabiting couples property ownership can be fraught with troubles, especially where the property is owned in one person’s sole name. Whilst it may not be an issue during the relationship, if the relationship breaks down the non-owner can quickly find themselves without a home.
However, a novel means of bringing a claim is through “proprietary estoppel”. In essence this allows an equitable interest in a property to be claimed if:

1. An assurance has been given by the owner that the non-owner has rights in the property;
2. The non-owner has relied on that assurance to their detriment; and
3. There has been unconscionable conduct by the owner denying the non-owner’s rights.

In the case of Southwell v Blackburn this was successfully argued.

The non-owner, Ms Blackburn, had previously been married and following her divorce was left with £25,000. She moved into a rented housing association property and spent £15,000 to £20,000 renovating it. She then met Mr Southwell and in 2002 she gave up her rented home and moved with her children into a property which he bought in his sole name home.

Many years later when the relationship broke down, Ms Blackburn claimed a 50% interest in the new property on the basis that (1) Mr Southwell had assured her that he would always provide a home for her, (2) she had detrimentally relied upon that assurance by giving up her rental property and (3) given the long nature of their relationship it was unconscionable for him to deny her any rights to the property.

Mr Southwell objected.

The High Court and later the Court of Appeal agreed with Ms Blackburn. It was found that during the relationship Mr Southwell had led Ms Blackburn to believe that she would have the sort of security that a wife would have in terms of accommodation and income. However, the most significant factor was that she had given up her rental property on which she had spent £15,000-£20,000, and this led the court to conclude that she should be compensated.

The Court did not award her 50% of the house but ordered Mr Southwell to pay her £28,500 being the sum (increased for inflation) required to put her back in the same position she was before she gave up her own house i.e. compensating her for what she had lost.

Had Ms Blackburn not spent £20,000 on her rental property it seems doubtful that proprietary estoppel could have been claimed as the detriment to her would have been minimal.

This case turns on its particular facts but cohabiting couples should be aware that although a property may be held in one person’s sole name it does not mean that the other may not be entitled to make a claim compensation especially if, as here, they have given up something of value.

From October 2014, Courts when considering matters relating to the care of children have had to:

“presume, unless the contrary is shown, that the involvement of both parents in the life of the child will further the child’s welfare.” [s11: Children and Families Act 2014]

It is a common misconception that this change in law has created a presumption of shared parenting i.e. that parents should as a right each be able to spend an equal amount of time with their child upon separation.

The word “involvement” is in fact defined as meaning:

“involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

i.e. it does not mean that there is a presumption of a 50/50 split of a child’s time between parents.

So if the legislation does not make such a presumption, what does it do and what difference will it make to the way in which cases involving the care of children are dealt with in the future?

As the law stands currently, when the Court determines any question in respect of arrangements for a child, it must always have the child’s welfare as its paramount consideration. As part of determining this welfare the Court already has to assess how best this will be served by the time they spend with each of their parents.

The introduction of this piece of legislation simply means that as long as it will not put the child at risk of harm the Court must presume that it will benefit the child’s welfare to have some involvement with both parents. However, regardless of this presumption the Court continues to have discretion to decide that it is not in the child’s interests to spend any time with one parent or some time with both, or equal time. It is quite rare to find a case where no involvement is in a child’s interests, even if contact is indirect.

On the ground Judges already take into account the fact that it is in a child’s best interests to have at least some contact with both parents. This change in the law is a “nod” towards the changing social landscape in which shared parenting arrangements of some sort are increasingly commonplace.

Many parenting rights groups may be disappointed the legislation does not go as far as they had hoped in providing equal rights for parents and their campaign for a presumption of shared parenting will continue. It remains to be seen whether any further steps will follow in the years to come.

The long-awaited report from the Law Commission on Matrimonial Property, Needs and Agreements has arrived and proposes clear new guidance in an area of Family Law that has been relatively uncertain up until now in this country – pre and post-nuptial and civil partnership agreements.

These are contracts, entered into by both parties to a marriage or civil partnership, setting out how a couple wish their financial matters to be resolved in the event of a divorce or separation. While they used to be relatively unusual in England and Wales they are commonplace in many countries across the world and over the past few years are becoming more and more accepted over here.

Until now however they have not been legally binding. The Court’s approach has been that it will uphold the agreement only if it is fair in all the circumstances. This approach followed the landmark case of Radmacher v Granatino but now the Commission proposes giving ‘qualifying nuptial agreements’ statutory backing.

There are four proposed formal requirements for the proposed agreements to be valid:
1) they must be a validly formed contract between the parties, not entered into on the basis of undue influence or misrepresentation
2) they must be made by deed and contain a signed statement saying that both parties understand what the agreement is and understand that it will partially remove the court’s discretion to make financial orders
3) they must not be made less than 28 days before the wedding or celebration of civil partnership
4) both parties must have received disclosure of material information about the other party’s financial situation at the time of making the agreement.

A further restriction is that agreements will only be enforceable “after both partners’ financial needs, and any financial responsibilities towards children, have been met”.

These proposals are, overall, what was expected of the report. What will be interesting to see is how this legislation, if passed, will change couples’ approach to these agreements. Will they become the norm for any newly engaged couple or will they remain in the domain of the high net worth individual?

A practical consideration for anyone wishing to enter into a pre-nup will be when is the right time to bring up the subject? Surely it has to be before the proposal or a certain amount of the romance may be lost if it is not well received. Perhaps a speculative musing over a coffee may be a good time to test the waters “If I were ever going to get married I would definitely enter into one of these…”. They will always come with something of an emotional health warning even if they become more de rigeur.

Whilst arbitration in family law was introduced back in February 2012, there has been some uncertainty amongst family lawyers as to how the Court viewed such agreements. The President of the Family Division has just published his recent judgment of S v S confirming that the Court will seek to uphold awards made in arbitration.

Arbitration means that the parties agree to submit themselves to the decision of an arbitrator in a far more informal setting rather than go through the Court process. The identity of the arbitrator can be agreed between them (usually a solicitor, barrister or retired judge who is governed by the not-for-profit Institute of Family Law Arbitrators). Parties can use this process to settle financial or property disputes on divorce, dissolution or separation. Whilst the parties will need to pay for the arbitrator’s time, they by-pass the long waiting lists at the Court and the legal costs inherent in drawn out Court proceedings. The parties sign a form called an ARB1 confirming that they will be bound by the arbitrator’s decision. The parties can still be represented by their solicitors/barristers at the arbitration. Once the arbitrator makes an award, this is submitted on paper to the Court for a judge’s approval in the form of a Consent Order.

The President has said that from now on the application for approval of draft consent orders based on awards made in arbitration can be dealt with by a High Court judge in an urgent manner, meaning this shortcuts the normal, often slow, process of lodging a consent order at the Court office to wait in a queue to be approved by a judge. The time between the parties signing the agreement to arbitrate and the issue of the award in the case of S v S was apparently 8 weeks, which is significantly shorter than the many months (sometimes between 9 months to a year) which can elapse before a Court case comes to final trial.

This ruling may mean that many more clients wish to pay for the time of an arbitrator to make a decision quickly so they can move forward with their lives without the cost of protracted and stressful court proceedings.

A survey of MPs by Resolution revealed that 69% believe their constituents mistakenly believe that the concept of “common law spouses” exists and that 57% believe that the law should be changed to protect those rights. This is on the same day that the Lib Dem party make it an official part of their policy to have cohabitants rights protected.

However, the UK will not be opting into the system recommended by MEPs whereby registered partnerships on the continent will be permitted to have the choice of law applying to their ownership of property (as married couples do under EU law).

The latter decision is of course understandable when we have opted out of being part of the automatic system being applied elsewhere in Europe. In Family Law, as with so many other areas of public life, the distance between the UK and Continental Europe grows ever wider. It seems strange though when there is apparently such widespread recognition of an injustice which leaves many financially weaker (usually female) partners to the relationship with only proprietary claims or claims for their children to fall back on, that there is not more political will to do something about it. if 57% of parliamentarians feel that the current law ought to change, why is there such apathy towards change?

The argument goes, of course, that giving cohabitants rights to make financial claims will in some way “devalue” marriage. But in my experience, people don’t get married in order to make sure they have claims in case it all goes wrong. They marry for a huge variety of reasons; as a sign of their commitment to each other or religion, to name but two. I doubt that there would be fewer people marrying because they thought it wasn’t necessary because they were already guaranteed automatic rights  as a result of having lived together. As an institution, marriage has a place in our society and will continue to do so. We do not need to give it exalted status to continue making it an attractive option for those planning their lives together.

Time will tell as to whether the march of social progress will debunk the myth of the common law spouse or whether real change will wipe out the problem completely.

This post is a short sharp reminder of an oft abused power of the court. All too often we see clients whose proceedings start with a bang- an ex parte freezing Injunction based on the other party’s suspicions or on idle threats made. In my experience, Judges take the path of least resistance and freeze assets belonging to the other party. For the recipient (or freezee) it’s often simpler and cheaper to give the undertakings not to dissipate assets and to negotiate a spending allowance than seek to disprove the allegations and overturn the ex parte order at the return date.

But as with the trend in other areas of family law (see Prest on which many more learned writers than me have far more interesting things to say) the judiciary are now telling us this is a nuclear weapon that should be used sparingly. Mr Justice Mostyn has reprised his theme from ND v KP in a new decision called UL v BK. he has set out some very useful guidance for those of us advising clients on the receiving end of these kinds of applications.

On the other hand though, part of the logic by which the Court of Appeal dispensed with the Hildebrand rules in Imerman v Tchenguiz was in reliance on ex parte remedies such as search and seizure orders and freezing injunctions which are routinely ordered in the other divisions. So are the financially weaker spouses now to be deprived of the remedy that was the fig leaf for removal of the great leveller in non disclosure cases? Certainly we are being told that the law is the law, no matter who is making the application. And maybe it’s right that there is one universal principle across all forums for litigation. But it could be a hard sell for a wife who’s in the dark about her husbands finances but who has been subjected to some threats of asset protection over the kitchen table.

Last week the family law firm Pannone published research which shows what family lawyers have long thought:- all English (and welsh) family courts are equal but some are more generous than others. A trawl of their previous cases shows that cases heard in courts in conurbations such as Manchester, London and Birmingham were more likely to result in a division of capital being supplemented by the making of maintenance awards.

For those of us at the coal face, this is not surprising news. In London the basic rule is that issuing at the Principal Registry on High Holborn is a good idea if you’re acting for a recipient party (whom I shall refer to for no reason other than generalisation/shorthand) whereas an outer London court might be better for a paying party (such as a husband). In this case it is because the Principal Registry is usually the main port of call for larger money cases that arent either an oligarch or especially complex enough to merit the High Court. The judges there are used to seeing larger numbers and are more likely in my experience to be ‘gung ho’ about awarding generous maintenance, with one eye on ‘standard of living during the marriage’ which of course is but one of the discretionary factors to which the court must have regard.

It has been suggested that the reason we see more maintenance cases in London, the South generally and conurbations is because in these places, the cost of turning one household into two is made more expensive by high house prices which necessitates ongoing income provision. It’s also fair to say though that the concentration of high earners in The South East (and London in particular) means that the income gap between ex spouses is likely to be greater.

But there are wider questions at play here. Even in the Registry where there are 20 odd courts, 20 different judges could come up with 20 different answers. Our discretionary system is designed to be bespoke to each case but there must be a balance. The research shows that the judiciary’s understanding and application of the law of income division is completely scattergun nationwide. How can there be one rule in one court and another the other end of the country? And if the judges can’t come up with a uniform answer about whether to make a maintenance order at all, let alone how much and for how long, how can any litigant or their lawyer expect to know where to settle their case? If we’re trying to ease pressure on the court system then having a set of principles about maintenance and when it should be awarded would be a good starting point.

And that takes us to the wider principle. At a seminar I attended this week, a female barrister on the panel gave an impassioned viewpoint to the audience on this topic. Her view was that there should be a presumption of maintenance only lasting two years. She felt it was time for courts to start treating women (usually the recipient) like adults who could stand on their own two feet. Doing so would of course ignore the reality that for many women decisions made during the marriage would come back to haunt them. But a rethink on maintenance and the treatment of an earning capacity is much needed.

A report from the office of the Head of International Family law in the Family Division of the High Court last week showed an upturn in the number of international family cases. The office deals with many cases at the extreme end of family law including forced marriages and abductions but as family lawyers this is a trend which pervades all areas of our practice. With global travel the way it is, we are all international family lawyers in the 21st century.

London and the South East are a magnet for people from all over the world. It’s only natural that for some of those travelling to the UK and bringing their families here for work or for personal reasons, some stories might not have a happy ending. And its not just people in high finance or oligarchs who have international issues. Our experience of international law at a bigger firm like Withers has been incredibly useful across a broad spectrum of cases involving people from all walks of life.

Equally there are those who are just starting out on their journey together but for whom the idea of having an agreement to regulate what happens if it doesn’t work out is part of their cultural DNA. Many other countries operate specific systems for holding property while married. The idea makes a lot of sense- why the need for a prenup when you can make a check box election? It’s not something we can ever expect to see in English legal system (the idea of a judge knowing best is too embedded in our DNA) but its easy to see why clients find it frustrating when you explain that it’s not just a matter of their fiancé(e) understanding an agreement and its financial context but it also has to be ‘fair’. What does that mean? Surely the whole point of a bargain is that it’s good for one side but less so for the other? Otherwise it’s just a compromise. The law is ripe for reform- If the government really wanted to reduce the cost of family justice they could do a lot worse than clarifying and codifying what fair means.

Until then though our job as international family lawyers is to try and guide our clients through the minefield of English family justice. Having an appreciation if how others do it is helpful for that process but is also healthy so that we continue to challenge whether our own laws really are all they’re cracked up to be.