07 December 2018 - Article
In this blog we continue our consideration of the most significant trends and decisions in family law in 2014, looking at the courts' treatment of couples' choices and at the increasing pressure for transparency in decisions. Choices and consequences There have been various examples this year of cases where the court has respected and endorsed the parties' choices. – In Torrington v Torrington  EWCA 1631 the court upheld a separation agreement that the parties had abided by for 20 years. – In SA v PA  EWHC 392 and Luckwell v Limata  EWHC 502 (Fam) the court carefully considered the pre nuptial agreements that the parties had entered into, and made clear that where the parties knew what they were agreeing to and made informed choices then, save for a cross check for fairness, the court should uphold those agreements. If, following next year's election, the Law Commission's proposals for reform in this area are taken forwards by the new government, then the court's approach may become formalised by statute.LuftgeblÃ¤se Choices that parties make during their marriage also impact on how assets are divided on divorce. In Quan v Bray  EWHC 3340 the parties' decision to put all their assets in a trust for the purpose of saving China's tigers rather than to use it for their own purposes, meant that the trust was not considered to be a nuptial settlement capable of being varied for the benefit of either spouse on divorce. Consequently, the wife could not pursue a claim against the funds of approximately £25m held within the trust, and was limited instead to the relatively few assets held outside the trust. Coleridge J simply said: “I hope the husband will now be creative to deal with (his wife's) legitimate claim for financial relief.” In an important development this year the court confirmed its support of parties' choice to instruct an independent arbitrator rather than go through the court system. In S v S  EWHC 7 Munby P said that, where parties have decided to accept an arbitral award, that choice is a single magnetic factor of determinative importance. Arbitration has also been offered as a solution to those parties who would prefer not to be restricted by the recent reforms made to court rules and procedure; for example, in his decision of J v J  EWHC 3654, Mostyn J suggested that if parties did not want to comply with the rule that the court should have just one bundle with 350 pages, perhaps they should arbitrate. However, if parties choose not to arbitrate but to litigate in the family courts then some of their choices will be taken away. The court has strict rules on how a case is run, the levels of disclosure, the deadlines that must be complied with (Munby P has been very clear on that: “Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week”), and, perhaps most controversially, the extent to which the family's dispute is open to the public. Transparency in the courts One of the more important developments this year has been Munby P's Guidance on Transparency that has led to an increase in public hearings and reported judgments. He has also issued a consultation paper seeking input on his plans for increasing transparency still further — potentially making documents available to the media so that they can better understand the cases that they are permitted to attend. Family cases can be heard in public, even when both parties agree that they would prefer that they remain private. This is perhaps the ultimate example of the court taking control and leaving the parties with little choice save to opt out of the court system altogether. In Hohn v Hohn, the Judge determined a dispute about press reporting of the court hearing by restricting the information that could be published to that which was already in the public domain. See our article discussing this issue here [link to https://www.withersworldwide.com/news-publications/what%E2%80%99s-right-to-write]. Previewing 2015 Looking ahead into 2015, it will be interesting to see the Supreme Court's decisions in Vince v Wyatt (where the wife is appealing a decision to strike out her claim for financial relief made 20 years after the parties separated) and Sharland (where the husband's failure to provide disclosure was found not to be sufficiently material to warrant a change to the order made). However, the question that I am most interested to see the answer to is the extent to which parties will increasingly choose alternative methods of dispute resolution and take control for themselves.