5932 Study Notes

Study notesCore Programme 5932

Family: Recent Financial Remedy Cases

16 October 2015

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16 October 2015Core Programme 5932

Contents

Core Programme 5932

Family: Recent Financial Remedy Cases 4

Discussion Points 12

Test & Feedback 13

Future Subjects 15

Future Programmes 16

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Study notes

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Core Programme 5932 16 October 2015


Target AudienceThis programme is aimed at all family practitioners dealing with private law matters.

Classification for CPDIntroductory; Intermediate

SynopsisIn this programme we consider particular provisions of the Matrimonial Causes Act 1973 and the Family Procedure Rules 2010 (FPR) in light of recent cases. In particular, we look at the cases of Wyatt v Vince (2015), Wright v Wright (2015), and SS v NS (2014), to consider:

• The jurisdiction to strike out in the FPR• The approach of the court to delay in bringing an application• The implications regarding the contribution of the parties to the family• Costs allowance orders• Applications to vary spousal maintenance awards• Changes in an ex-spouse’s circumstances• An ex-spouse’s failure to transition to independence• Mr Justice Mostyn’s eleven points of guidance for spousal maintenance awards

Introduction

Legislative Background

• Matrimonial Causes Act 1973 — Financial provision orders — Matters to which the court is to have regard — Orders for payment in respect of legal services

Wyatt v Vince (2015)

• Court of Appeal• Supreme Court judgment• Strike-out in family proceedings• Delay• Contribution to family• Costs allowance order

Spousal Maintenance

• Wright v Wright (2015) — Court of Appeal judgment

• SS v NS (2014)

Conclusion

Rupi RaiSenior AssociateSlater & Gordon (UK) LLP

Roopa AhluwaliaSenior AssociateBirketts LLP

Contributor Details

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INTRODUCTIONHigh profile divorces involving huge sums of money can be newsworthy, but often the cases which make the headlines do not actually represent groundbreaking changes of direction from a legal point of view. Sometimes, however, the unusual cases draw out interesting points which practitioners can apply to their own clients’ cases. Recently the Supreme Court has provided some useful guidance on delay, and striking out, in applications for financial relief which are made some time after a divorce has taken place.

There has also been some comprehensive guidance on the correct approach towards spousal maintenance. The courts are largely moving away from joint lives maintenance and now expect both parties to make a working contribution towards their own household expenditure. The judgment of Mostyn J in SS v NS (2014) provides information for family practitioners in relation to the circumstances in which an award for spousal maintenance will be made, and the principles underlying such awards.

LEGISLATIVE BACKGROUND

Matrimonial Causes Act 1973

Financial provision orders

Section 23 of the Matrimonial Causes Act 1973 (MCA 1973) provides:

‘On granting a decree of divorce, a decree of nullity of marriage, or a decree of judicial separation or at any time thereafter … the court may make any one or more of the following orders…’

The orders then listed include orders for periodical payments to be paid by one party to another, and for lump sum payments.

Matters to which court is to have regard

Under s.25(2) MCA 1973, as regards the exercise of the court’s power under s.23(1)(a), (b) or (c), s.24, s.24A orx s.24B, the court is required to have regard in particular to:

‘…(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring…’

Orders for payment in respect of legal services

Section 22ZA MCA 1973, inserted by s.49(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, deals with orders for payment in respect of legal services. It provides:

‘(1) In proceedings for divorce, nullity of marriage or judicial separation, the court may make an order or orders requiring one party to the marriage to pay to the other (“the applicant”) an amount for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings.

(2) The court may also make such an order or orders in proceedings under this Part for financial relief in connection with proceedings for divorce, nullity of marriage or judicial separation.

(3) The court must not make an order under this section unless it is satisfied that, without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings.

(4) For the purposes of subsection (3), the court must be satisfied, in particular, that—


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(a) the applicant is not reasonably able to secure a loan to pay for the services, and

(b) the applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings.

(5) An order under this section may be made for the purpose of enabling the applicant to obtain legal services of a specified description, including legal services provided in a specified period or for the purposes of a specified part of the proceedings.

(6) An order under this section may—

(a) provide for the payment of all or part of the amount by instalments of specified amounts, and

(b) require the instalments to be secured to the satisfaction of the court…’

WYATT V VINCE (2015)The case of Wyatt v Vince (2015) received considerable attention from the press, partly because of the human interest in their different financial fates after divorce, but also as a result of the considerable delay between their divorce and the wife’s subsequent application for financial orders.

Dale Vince and Kathleen Wyatt married in 1982, and had one child together, Dane. During their relationship, the couple lived a hand to mouth existence. They separated in 1984 and, following their separation, Mr Vince had insufficient income to pay child maintenance to Ms Wyatt. He lived a new-age traveller existence for many years, and Ms Wyatt subsisted on benefits. The couple were granted a decree absolute in 1992, but did not at the time settle any financial claims against each other. Apart from small sums from time to time, Mr Vince paid no regular child maintenance to Ms Wyatt after their separation and divorce.

Ms Wyatt was without financial stability. She subsisted partly on low wages and partly on state benefits.

Mr Vince’s lifestyle was the complete opposite, because of the success of his business. He was the sole shareholder of Ecotricity Group Ltd, and the value of his company was at least £57m.

In 2011, 19 years after their divorce, Ms Wyatt issued an application for financial orders, in particular for an order that Mr Vince should make a lump sum payment in satisfaction of all her claims. She also applied for an order that he should make interim periodical payments to her in sums equal to her estimated costs of the substantive application, pursuant to the decision of the Court of Appeal in Currey v Currey (2006).

Mr Vince cross-applied for an order that Ms Wyatt’s application be struck out pursuant to Rule 4.4 of the Family Procedure Rules (FPR). On 14 December 2012, the High Court dismissed Mr Vince’s cross-application and, on Ms Wyatt’s application, ordered Mr Vince to pay £125,000 in instalments directly to Ms Wyatt’s solicitors (the costs allowance order). Mr Vince appealed to the Court of Appeal against both orders.

Court of AppealThe Court of Appeal set aside the orders of the High Court; struck out Ms Wyatt’s substantive application; and ordered that, of the £125,000 which by then Mr Vince had paid in

full, Ms Wyatt should repay to him such sum as exceeded the state of her account with her solicitors on 17 January 2013, which amounted to an order for repayment of £36,677 (the repayment order).

Ms Wyatt appealed to the Supreme Court against the orders made by the Court of Appeal and sought the reinstatement of the orders of the deputy judge. Her appeal raised the following questions:

(a) What is the extent of the jurisdiction to strike out a spouse's application for a financial order under Rule 4.4 FPR?

(b) In light of the factors relevant to the determination of Ms Wyatt’s application, did the Court of Appeal err in striking it out?

(c) If the answer to (b) was yes, what case management directions would be proportionate to the unusual circumstances of Ms Wyatt’s application?

(d) Irrespective of the answer to (b), did the Court of Appeal err in setting aside the costs allowance order and/or in making the repayment order?

Supreme Court judgmentBefore examining the four questions posed above, the Court considered first the earlier divorce proceedings. In the absence of a copy of the divorce petition, it was assumed that Ms Wyatt applied for the full range of financial orders for the benefit of herself (i.e. spousal maintenance), as this was usual practice. The Supreme Court found that in any event it was irrelevant whether Ms Wyatt had applied for financial remedy at the time because, in the absence of her remarriage (which would have precluded her from doing so under s.28(3) MCA 1973), it was open to her to bring proceedings for financial orders in 2011, or at any time.

In relation to maintenance, the Supreme Court said that it was common ground that:

‘…the husband did not provide the wife with any substantial payments of maintenance for either of the two children; and that she struggled to maintain a home for them in circumstances of real privation bordering upon poverty. For most of those years the husband's failure to pay maintenance reflected his inability to pay it’

The Court found that it was only in the final years of their son’s minority that Mr Vince was in a position to pay substantial maintenance for him, as a result of his, by then, substantial success in business.

Strike-out in family proceedingsAs set out above, FPR 4.4 sets out the power to strike out an application in family proceedings. Under paragraph (1) of Rule 4.4, the court has the power to strike out a statement of case if it appears to the court:

‘(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;

(c) that there has been a failure to comply with a rule, practice direction or court order; or

(d) in relation to applications for matrimonial and civil

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The Supreme Court found that Ms Wyatt’s application faced ‘formidable difficulties’:

• The marital cohabitation subsisted for scarcely more than two years.

• It broke down 31 years before.• The standard of living enjoyed by the parties prior to

the breakdown could not have been lower.• The husband did not begin to create his current wealth

until thirteen years after the breakdown.• The wife had made no contribution, direct or indirect, to

its creation.

DelayFurthermore, Ms Wyatt’s delay in bringing the application was inordinate. Whilst she could explain the first 13 years (there was no point in pressing financial applications against Mr Vince when he had no money), the same could not be said for the delay of 14 years from 1997 until 2001. She argued that for the first part of that period, she had no idea that he was becoming wealthy and his continued failure to maintain their son led her to assume that there was no significant change in his financial circumstances. However, there was no explanation for much of the more recent delay.

The Court acknowledged that there is no time-limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) MCA 1973 provide that such orders may be made on granting a decree of divorce ‘or at any time thereafter’. However, the Supreme Court said that there is a ‘prominent strain of public policy hostile to forensic delay’, and that the courts will therefore look critically at explanations for such delay, and will be likely to reduce or even eliminate its provision for the applicant. The Court however went on to look at what Ms Wyatt might put forward in terms of making a successful application. It found that:

• On its own, it was insufficient that Mr Vince was now so wealthy that he could meet whatever award, if any, might reasonably be made and there was no need for any exploration of his financial circumstances.

• However, Ms Wyatt asserted a need both for a better home and for a fund to maintain herself for the rest of her life. With what the Court called ‘questionable forensic wisdom’, she quantified these at £0.55m for the home and £1.35m for the fund: a total of £1.9m. The Court said an award approaching that size was ‘out of the question’.

• The Supreme Court said that it is a ‘dangerous fallacy’ that the current law always requires rich men to meet the reasonable needs of their ex-wives. In order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists, but that it has been generated by her relationship with her husband (Miller v Miller (2006), McFarlane v McFarlane (2006)).

Contribution to familyHowever, the Court then turned to Ms Wyatt’s other argument which Lord Wilson said may prove to be much more powerful. The argument related to the court’s obligation, in the discharge of its duty under s.25 MCA 1973, to have regard to ‘the contributions which each of the parties has made… to the welfare of the family, including any contribution by looking after the home or caring for the family’ (s.25(2)(f)). Such contributions are not limited

partnership orders and answers to such applications, that the parties to the proceedings consent.’

The relevant paragraphs for the purposes of this case are (a) and (b).

Paragraph (4) of Rule 4.4. provides that the court’s power under paragraph (1) does not limit any other power of the court to strike out a statement of case. As Lord Wilson said in the Supreme Court:

‘…but no one suggests that the deputy judge had an inherent jurisdiction to strike out which went wider than that set by paragraph (1).’

The principal question for the Court was the proper construction of the words ‘no reasonable grounds’ and ‘abuse of the court’s process’ in paragraphs 1(a) and (b). Lord Wilson made reference to paragraphs 2.1 and 2.2 of Practice Direction 4A, which supplements Rule 4.4. Those paragraphs provide:

‘2.1 The following are examples of cases where the court may conclude that an application falls within rule 4.4(1)(a) -

(a) those which set out no facts indicating what the application is about;

(b) those which are incoherent and make no sense;

(c) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent.

2.2 An application may fall within rule 4.4(1)(b) where it cannot be justified, for example because it is frivolous, scurrilous or obviously ill-founded.’

His Lordship found that these paragraphs are ‘closely modelled’ on paragraphs 1.4 and 1.5 of Practice Direction 3A in the Civil Procedure Rules (CPR). Whilst one could infer that the references in the FPR to ‘no reasonable grounds’ and ‘abuse of the court’s process’ should carry the same meaning as in the CPR, the CPR expressly confers the further power to give summary judgment if a party has no real prospect of success. There is no analogous power in the FPR to give summary judgment.

The Supreme Court found that the omission of a rule analogous to that in the CPR was deliberate. The power to strike out is most relevant to financial order applications, and the objection to a grant of summary judgment is not just that its determination is discretionary, but that, by virtue of s.25(1) MCA 1973, it is the duty of the court to have regard to all the circumstances and in particular to the matters set out in s.25(2).

Rule 4.4(a) FPR has to be construed without reference to real prospects of success, and the ‘touchstone’ is whether the application is legally recognisable. The Court said that examples of applications that were not legally recognisable would be applications made after the applicant had remarried, or after an identical application had been dismissed.

Ms Wyatt’s Form A and supporting affidavit were not an abuse of process, except in the extended sense proposed by the Court of Appeal. As that proposal was wrong, paragraph 4.4(1)(b) did not apply. The Supreme Court found that Rule 4.4(1)(a) was equally inapplicable: one could not say that the form and affidavit failed to disclose either a legally recognisable application, or reasonable grounds for bringing it.

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to those made prior to the separation or even during the marriage. Ms Wyatt’s case was that the burden of caring for the children had fallen on her alone, in the absence of any significant financial or other contribution from Mr Vince, and in conditions of poverty. She said that it was no answer to her case for Mr Vince to argue that he was unable to make significant payments for most of the years in question.

The Supreme Court found that Ms Wyatt’s application should swiftly be referred back to the Family Division. The Court suggested that the major issues requiring limited investigation by way of oral evidence were Ms Wyatt’s delay on the one hand, and the disparate contributions to childcare on the other.

Costs allowance orderAs set out above, the court has a statutory jurisdiction to order a party to an application for financial orders in divorce proceedings to make payments to enable the other to pay for legal services for the purposes of pursuing or defending it (s.22ZA MCA 1973, which came into force on 1 April 2013).

In order to obtain a cost allowance order, an applicant has to demonstrate that s/he could not reasonably procure legal advice and representation by any other means. To the extent that s/he has assets, the applicant has to demonstrate that they cannot reasonably be used to fund legal services, and s/he also has to demonstrate that s/he cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery.

The evidence accepted by the deputy judge was that Ms Wyatt’s solicitors had agreed to give her credit for services rendered until the determination of her application for a costs allowance order but that, were the application to fail, the partners of the firm would meet in order to determine whether, and if so on what basis, they could continue to act for her. Mr Vince argued that this should have led the judge to decline to be satisfied that the solicitors would not continue to act for her until the determination of her application.

The Supreme Court disagreed, and found that in circumstances in which Ms Wyatt already owed her solicitors about £88,000 for an application in which her ultimate recovery was likely to be modest and conceivably even non-existent, it was unreasonable to consider that they would continue to act for her on that basis against an evidently litigious husband, who was causing substantial escalation of the costs, in a manner which clearly caused him no difficulty. The costs allowance order should therefore be restored and the Court of Appeal's repayment order set aside.

It will be interesting to see how the court now approaches Ms Wyatt’s substantive claim, given the clear indications given by Lord Wilson in relation to her needs and the inordinate delay in bringing her claim. It is unlikely that she will be able to sustain a claim based on needs, and she is much more likely to succeed on the basis of her contributions to the family through caring for the children after the breakdown of the marriage.

SPOUSAL MAINTENANCETwo recent cases have provided some useful guidance on spousal maintenance. The first case, Wright v Wright (2015), has brought attention to what is now a common feature of

divorce law: joint lives maintenance. This is where a wife or husband, following a marriage of a moderate duration, and (usually) with children, receives an award of maintenance for their joint lives, i.e. until s/he or his/her former husband/wife dies.

Financial outcomes for divorcing couples involve two components: capital and income. Whilst much has been made of capital settlements over recent years, less has been heard about income provision or spousal maintenance. One party to a marriage or civil partnership has a claim against the other party for periodical payments (‘maintenance’ or ‘spousal maintenance’) for as long as the court deems is appropriate. How the amount of maintenance is arrived at by the judge depends on a number of factors including financial needs and lifestyle, which will be looked at in light of all the circumstances. The most obvious situation is where the wife has taken a career break to have children, who are very often still dependent at the date of the separation.

Wright v Wright (2015)The issues in Wright v Wright (2015) related to the reduction in maintenance as a result of the husband’s retirement, and the wife’s failure to make a working contribution towards her own household expenditure.

The parties were married in 1997 and separated in 2006. The husband (59) was an equine surgeon. The wife (51) was not working. She had worked for a considerable period before the marriage, but at the time of the application she was caring for the parties' two daughters (aged sixteen and ten).

In April 2008, Cushing DJ made an order that the husband should make periodical payments to the wife of £33,200 per annum during the parties’ joint lives, or until the wife remarried, or until further order. He was also ordered to make periodical payments of £10,400 in respect of each of his daughters until they reached seventeen.

In November 2012, the husband made an application for a variation of that order on two grounds:

• his financial circumstances had changed for the worse; and

• the wife had not fulfilled the expectation (made clear in the judgment of the judge), that within two years she would begin to make a working contribution towards her own household expenditure.

Roberts J granted the application and found:

• At the time of the original order, the husband would be paying 22% of his net income in spousal and child maintenance. There had since been a downturn in his net income and he was now paying roughly 34%. If school fees were included, his outlay had increased from about 30% of his net income in 2008 to 59% in 2013.

• The husband had planned to retire at the age of 60, but had been required to postpone his retirement age.

• The wife was an unsatisfactory witness, and in particular was evasive on the issue of her own earning capacity. She did not wish to answer many of the questions the judge found were properly put to her in cross-examination.

• The wife had been on strict notice that she would be expected to make a contribution towards her own maintenance.

• In fact, the wife had done nothing since 2008 to look

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for work or to retrain or to prepare herself for work. The judge rejected all the reasons put forward by the respondent to explain her inactivity.

Section 31 MCA 1973 makes provision for the variation, discharge etc. of certain orders for financial relief. Under s.31(7):

‘In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates’

Roberts J found, applying the test in s.31(7), that it was appropriate to vary the order made in April 2008 by scaling down the spousal maintenance during the following six year period to enable the wife to use and improve her earning capacity as she gathered experience and training and as her childcare responsibilities reduced.

In the judge's view, the wife’s current income needs, including caring for the children, were £36,000, not £64,000 per annum as she had claimed. She therefore ordered that the periodical payments should be varied downwards, gradually reducing over time.

The wife applied for permission to appeal against the order.

Court of Appeal judgment

The main ground for the wife’s application was that the judge failed to pay adequate regard to the fact that the original order by Cushing DJ was a joint lives order. The Court of Appeal refused the wife’s application. Pitchford LJ quoted District Judge Cushing where she said:

“There is a general expectation in these courts that once a child is in year two, most mothers can consider part time work consistent with their obligation to their children ... I do not anticipate her having a significant earning capacity nor would it be reasonable to expect her to muck out stables for the minimum wage. However, she should make some financial contribution.”

The Court of Appeal found that Judge Roberts, in varying the order, found that the applicant had exaggerated her income needs and failed to confront the need to contribute financially. She concluded that when the respondent retired he would still be supporting one of the children, but should no longer be paying spousal maintenance.

The key question for the Court was whether the wife had a real prospect of undermining the judge's scaled reduction in spousal maintenance.

Pitchford LJ found that there was no such prospect. He found that the wife had been questioned closely about her working experience since the original order of 2008. The judge had calculated that during the following two years the wife would be able to meet her reasonable costs without working, although it was imperative that she take immediate action to contribute financially to her own future. Whilst Pitchford LJ found that the judge could have been more specific in setting out the foundations of her order, she had given sufficient reasons for departing from the provisional view of Judge Cushing.

SS v NS (2014)In SS v NS (2014), the applicant wife (39) and husband (40) had cohabited for five years before their marriage, and had been married for six years prior to separation. They had three children.

The matrimonial assets were valued at over £3 million. The wife’s financial claim consisted of both capital and income. In relation to income, it was agreed that there would be a spousal periodical payments order, but the dispute revolved around what such order should consist of. The wife argued that the order should be £60,000 per annum for 27 years. The husband argued that the order should be £24,000 per annum for 12 months falling to £12,000 per annum, and eventually being discharged over 11 years.

Mostyn J found that neither of these proposals was reasonable. Having considered the applicable case law and the views of the Law Commission, he set out the following 11 applicable principles in respect of spousal maintenance:

1. A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant. Here the duration of the marriage and the presence of children are pivotal factors.

2. An award should only be made by reference to needs, save in a most exceptional cases.

3. Where the needs in question are not causally connected to the marriage, the award should generally be aimed at alleviating significant hardship.

4. In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable. A degree of (not undue) hardship in making the transition to independence is acceptable.

5. If the choice between an extendable term and a joint lives order is finely balanced, the court should favour the former.

6. The marital standard of living is relevant to the quantum of spousal maintenance, but is not decisive. That standard should be carefully weighed against the desired objective of eventual independence.

7. The essential task of the judge is not merely to examine the individual items in the claimant's income budget, but also to stand back and to look at the global total and to ask if it represents a fair proportion of the respondent's available income.

8. Where the respondent's income comprises a base salary and a discretionary bonus, the claimant's award may be equivalently partitioned, with needs of strict necessity being met from the base salary and additional, discretionary, items being met from the bonus.

9. There is no criterion of exceptionality on an application to extend a term order. On such an application an examination should to be made of whether the implicit premise of the original order of the ability of the payee to achieve independence had been impossible to achieve and, if so, why.

10. On an application to discharge a joint lives order, an examination should be made of the original assumption that it was just too difficult to predict eventual independence.

11. If the choice between an extendable and a non-extendable term is finely balanced, the decision

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should normally be in favour of the economically weaker party.

In his judgment, a core spousal maintenance of £30,000 per annum was a reasonable sum for the wife to receive, for an extendable term which expired when the youngest child turned 18. The term was extendable in the event that the wife, as the weaker economic party, fell on hard times which justified further support from the husband.

CONCLUSIONBehind the headlines, what these cases show is that the courts are prepared to look at all of the factors justifying financial support for ex-spouses, and that whilst wealthy parties might not be able to escape from their responsibilities, they can be fairly confident that they will one day be discharged.

BIOGRAPHIESRupi Rai is a Senior Associate in family law based at the London offices of Slater and Gordon. She has extensive experience handling cases involving various aspects of family law. She tackles all matters relating to relationship breakdown - including prenuptial and postnuptial agreements and matters relating to children. She is committed to resolving matters using a non-confrontational approach but will not hesitate to initiate court proceedings if necessary. As an expert in her field, Rupi is regularly interviewed on television and radio on matters relating to family law.

Roopa Ahluwalia specialises in family and matrimonial law and is a senior associate, mediator and collaborative lawyer at Birketts LLP. Her practice involves all aspects of family law advice and deals in particular with divorce advice, financial remedies, separation advice/deeds, dissolution of civil partnerships, children arrangements, pre-nuptial agreements and post-nuptial agreements, cohabitation disputes and living together agreements. Roopa has experience of high net worth divorce and finance cases, often with an international element and, having been accredited to the Law Society’s Children panel in the past, Roopa is equally accomplished in dealing with complex Children Act matters.

LINKS AND CITATIONSMatrimonial Causes Act 1973:http://www.legislation.gov.uk/ukpga/1973/18

Legal Aid, Sentencing and Punishment of Offenders Act 2012:http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted

Wyatt v Vince [2015] UKSC 14:http://www.bailii.org/uk/cases/UKSC/2015/14.html

Wright v Wright [2015] EWCA Civ 201:http://www.bailii.org/ew/cases/EWCA/Civ/2015/201.html

SS v NS [2014] EWHC 4183:http://www.bailii.org/ew/cases/EWHC/Fam/2014/4183.html

Currey v Currey [2006] EWCA Civ 1338:http://www.bailii.org/ew/cases/EWCA/Civ/2006/1338.html

Miller v Miller, McFarlane v McFarlane [2006] UKHL 24:http://www.bailii.org/uk/cases/UKHL/2006/24.html

Family Procedure Rules 2010:https://www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu

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Discussion Points

1. What matters do we think courts should have regard to when ordering periodical or lump sum payments to be paid by one party to another for financial provision after divorce, nullity of marriage, or judicial separation?

2. What considerations do we think courts should take into account before making an order that one party to proceedings for divorce, nullity of marriage, or judicial separation should pay the other party an amount to enable them to obtain legal services for the purposes of the proceedings?

3. In Wyatt v Vince (2015) what do we think were the “formidable difficulties” facing Ms Wyatt’s application for financial orders?

4. The Supreme Court felt that Ms Wyatt’s assessment of her needs as being £0.55m for a house and £1.35m for a fund to maintain her for the rest of her life

demonstrated “questionable forensic wisdom”. How do we think we would go about calculating a realistic award for Ms Wyatt?

5. What significance do we attach to the different types of delay which occurred before Ms Wyatt brought her application?

6. What, in our opinion, are the arguments for and against joint lives orders?

7. What steps do we think that ex-spouses in receipt of spousal maintenance should take in order to make the transition to financial independence?

8. Which factors do we think are most important when calculating a spousal maintenance award?

Notes

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Test & FeedbackFamily: Recent Financial Remedy Cases

Please return completed Test & Feedback to: Administration Department, Legal Network Television Limited, 14 Store Street, London WC1E 7DE or fax to: 020 7637 5911

1. Under s.23 of the Matrimonial Causes Act 1973 (MCA 1973), at which ONE of the following can a court make an order for maintenance payments?

a. Prior to the granting of a divorce, a decree of nullity of marriage, or a decree of judicial separation.

b. At the time of granting a decree of divorce, a decree of nullity of marriage, or a decree of judicial separation.

c. At the time of granting a decree of divorce, a decree of nullity of marriage, or a decree of judicial separation, or at any time thereafter.

d. Before, at the time of, or after granting a decree of divorce, a decree of nullity of marriage, or a decree of judicial separation.

e. After granting a decree of divorce, a decree of nullity of marriage, or a decree of judicial separation.

2. Under Rule 4.4 of the Family Procedure Rules (FPR), which ONE of the following does NOT give the court the power to strike out an application in family proceedings?

a. The statement of case discloses no grounds for bringing or defending the application.

b. The statement of case demonstrates that the application has no prospect of success.

c. The statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

d. There has been a failure to comply with a rule, practice direction, or court order.

e. The parties to the proceedings consent.

3. Which ONE of the following is NOT evidence that an application should be struck out because it shows no reasonable grounds or is an abuse of the court’s process?

a. It sets out no facts which indicate what the application is about.

b. It is incoherent and make no sense.c. It does not disclose any legally recognisable

application against the respondent.d. It is frivolous, scurrilous, or obviously ill-founded.e. It is vague and contains factual errors.

4. Is the following statement TRUE or FALSE?

Section 31 MCA 1973 makes provision for the variation or discharge of certain orders for financial relief, and requires the court to have regard to all of the circumstances of the case, giving first consideration to the welfare of any children under eighteen, and any changes in the circumstances that prevailed when the original order was made.

5. Which ONE of the following is NOT one of the 11 principles set out by Mostyn J in SS v NS (2014), in respect of spousal maintenance?

a. An award is appropriate where choices made during the marriage have generated future needs on the part of the claimant.

b. The judge should consider the conduct of the parties when deciding how much should be awarded.

c. A degree of hardship in making the transition to independence is acceptable.

d. The marital standard of living is relevant to the quantum of spousal maintenance but is not decisive.

e. The judge should look at the proportion of the respondent’s budget that the award will represent and ask if it is fair.

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Future Subjects

October/November 2015

Core Programme 5933Corporate/Commercial: Consumer Rights Act 2015

The Consumer Rights Act 2015 (CRA 2015) forms part of the

government's comprehensive programme for reforming the UK

consumer law regime. CRA 2015 simplifies much of consumer

law, and is predicted to boost the economy by £4 billion over the

next decade by consolidating eight different pieces of consumer

protection legislation. The intention is that the law will be clearer

and easier to understand, enabling consumers to be better informed

and protected when buying goods and services.

This programme examines:

• The rights and remedies provided by CRA 2015 in relation to

sales contracts, contracts for digital content, and contracts for

services

• The provisions of CRA 2015 dealing with unfair terms in

consumer contracts; and other changes including class actions

for competition law claims, letting agents’ fees, and online

secondary ticketing

This programme is aimed at all corporate/commercial practitioners

advising clients on consumer protection law.

Classification for CPD: Intermediate

Core Programme 5934Employment: Small Business, Enterprise and Employment Act 2015

The Small Business, Enterprise and Employment Act 2015 aims to

make the UK the most attractive place to start, finance, and grow

a business. However, the Act also contains important employment

provisions that seek to ensure that businesses operate a just and fair

workplace for all.

This programme considers:

• Equal pay

• Whistleblowing

• Penalties for failure to pay employment tribunal awards/

settlements

• Zero hours contracts

• The National Minimum Wage

• Public sector exit payments

This programme is aimed at all employment practitioners.


Core Programme 5935Property: Green Issues for Landlords and Tenants

The UK is committed to both international and national targets for

the reduction of greenhouse gases. As buildings are a major source

of UK carbon emissions, these commitments create numerous

issues for landlord and tenants. The Energy Efficiency (Private

Rented Property) (England and Wales) Regulations 2015, and The

Heat Network (Metering and Billing) Regulations 2014, are intended

to make a significant contribution towards achieving the required

reductions.

This programme considers:

• The minimum energy efficiency standard, including exemptions

and enforcement

• The requirements of The Heat Network Regulations, including

notification and the installation of meters

This programme is aimed at all property practitioners. It will also be

of interest to solicitors working in local government.


Core Programme 5936Dispute Resolution: Costs Management Update

The changes to costs management made as a result of the

recommendations of Lord Justice Jackson, in his report on litigation

costs in April 2013, have had some unintended consequences,

and resulted in some unforeseen difficulties. Further changes have

therefore been proposed to deal with the problems which have

arisen.

In this programme we consider:

• How the courts can increase uniformity of approach towards

costs management, reduce delays, and control costs incurred

before the first case management conference

• Changes to be made to Precedent H and bills of costs

• The introduction of uniform task-based management systems

and J-Codes

This programme is aimed at all dispute resolution practitioners. It

will also be of interest to personal injury practitioners.

Classification for CPD: Intermediate; Advanced; Update

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Future Programmes

Please note that from time to time it may be necessary to change the titles, dates or subject areas of the programmes listed to reflect changes in the law.

Date Prog. No. Subject Title

23 October5933 Corporate/Commercial Consumer Rights Act 2015

5934 Employment Small Business, Enterprise and Employment Act 2015

Break

6 November5935 Property Green Issues for Landlords and Tenants

5936 Dispute Resolution Costs Management Update

13 November5937 Private Client Donatio Mortis Causa

5938 Personal Injury Historic Abuse Claims

20 November

5939 Practice Management & Compliance Cyber Security For Law Firms

5940 CrimeCriminal Justice and Courts Act 2015 Part I – New Offences

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The Solicitors Regulation Authority’s CPD requirements

The SRA requires that all solicitors admitted to the Roll and registered European lawyers undertake Continuing Professional Development (CPD). The CPD year runs from 1 November to 31 October. Briefly, the requirements are that newly qualified solicitors/registered European lawyers complete one hour for each whole month worked from the date of admission/registration to 31 October. Those admitted on 1 November will go straight into their first CPD year. 16 hours are required in each subsequent year.

Full details of SRA requirements are detailed on their website: www.sra.org.uk

Getting SRA authorisation for my firm

Complete the application form, available from our Customer Service Team (01483 216789) or The Solicitors Regulation Authority (0870 6062555), and name the members of staff who will lead the training sessions. You will have to sign a set of terms and conditions, which require that you keep records of each in-house training session. There is a small administration fee but this covers all your staff and allows them to earn their CPD hours through group study with College of Law Media for three years.

Customer Service Team The Solicitors Regulation Authority

Telephone 01483 216789 Telephone 0870 6062555

Professional Development from The University of Law

The University of Law is the UK’s leading provider of professional development for lawyers. We are focused exclusively on equipping legal practitioners at all levels with the knowledge and skills they need to further their careers and meet their continuing professional development requirements.

At the heart of the legal profession, we’ve trained more lawyers than anyone else and we’re continually evolving our innovative professional development programmes to meet the needs of the profession.

'College of Law Media' is the trading and brand name of Legal Network Television Limited, a company registered in England and Wales, Company Number 07933849, with registered office at Braboeuf Manor, St Catherines, Guildford, Surrey, GU3 1HA, United Kingdom

DX: 2400 Guildford E-mail: [email protected] Tel: 01483 216789 www.law.ac.uk

©Legal Network Television Limited 2015

Documents

5932 Study Notes