23 August 2017

Summer 2017 in family law: one step forward, two steps back


Victoria Nottage
Professional support lawyer | UK

There have been a number of important developments in family law this summer, not as might be expected, on a straight trajectory but rather less predictably, as well moving forwards also looking to the past.

Owens v Owens is the case in which 27 particulars of unreasonable behavior were successfully refuted by the husband in cross examination leading to the wife's petition being dismissed and the parties being forced to remain married. A scenario most thought consigned to history. The Court of Appeal found no grounds to justify overturning the trial judge's decision and the wife has now been granted permission to appeal to the Supreme Court.

The umbrella body for family lawyers, Resolution has applied to intervene in the case which will consider whether the Courts current approach to unreasonable behavior particulars is wrong. Alongside this Resolution are also continuing to campaign for no fault divorce. Click here for our recent blog on the case.

Mills v Mills concerns cross applications by former spouses for variation of maintenance payable by the husband to the wife. When the parties separated in 2002, the wife received the greater proportion of the parties' capital and maintenance of £1100 per calendar month. Some 15 years later, the husband argued she is now in a position to earn more and her maintenance should be decreased and capitalized (paid off with a lump sum). However in the intervening period the wife, through purchasing a series of increasingly expensive properties had diminished her capital and is now living in rented accommodation with the parties' son. She argued that her maintenance should be increased.

At trial the Judge decided that the status quo should remain. However, the Court of Appeal (in a decision which has been called a backwards step away from recent jurisprudence encouraging independence after divorce) increased the wife's maintenance by £300 per month to meet her 'needs', which included accommodation. The Supreme Court will consider whether it is appropriate for maintenance to be increased to cover 'needs' that have already been met in a previous capital award.

Another case that caught my attention this week was the returning case of Green v Adams. I have blogged on this case before (read it here) highlighting Mr Justice Mostyn's campaign to have the 'assets' ground of variation reprized in the CSA jurisdiction. In this case the father was found to have assets of over £5 million, but an assessment of his income under the 2012 Gross Income Scheme resulted in an award of just £7 per week. In this latest judgment Mostyn J highlights the government's position on the request to reinstate the 'assets' ground, namely that the CSA is not designed to provide a bespoke solution. Again, when I look at the historic situation whereby the 'assets' ground existed for 10 years prior to 2012 and was successfully used in this case, you will see a return to the theme of this blog. As Mostyn J says, 'The scheme should surely strive to provide a just solution in all cases; for the few as well as the many. Justice surely should not be sacrificed on the altar of managerial efficiency.'

And finally…

I want to mention the new form for divorce petitions which was released in July and becomes compulsory from 4 September. This form demonstrates another positive step towards making access to justice easier with the guidance notes are housed in the margin of the form (instead of a lengthy separate document). However, as noted by others, the formatting of the section for adultery lends itself to the involvement of a third party 'co-respondent' and therefore despite the significant step forwards in simplifying the form, could also open the way for a significant step backwards as 'betrayed' litigants demand their day in court with the new partner.

Notwithstanding these nods to the past, there are also strong campaigns for change in each instance and I have high expectations of positive progress in the family law arena. I look forward to seeing what will happen next.

Victoria Nottage Professional support lawyer | London

Category: Blog