Financial relief COPY Flashcards
(106 cards)
1
Q
Kehoe v SSWP [2005] UKHL
A
enforcement mechanism
Held the CSA 1991 did not confer any right on a caring parent to recover or enforce a claim to child maintenance against an absent or non-resident parent. This was not an omission, but was the essence of the new scheme. The former right to recover maintenance had been removed, and had been vested in the Agency.
in the act that the payee can use: so if other person owes money, there is nothing you can do to force the person to pay money, child support agency only has those powers.
2
Q
Rowley v SSWP [2007] EWCA
A
The Secretary of State for Work and Pensions did not owe a common law duty of care in negligence to an applicant for child support under the Child Support Act 1991 as such a duty would be inconsistent with the statutory scheme.
3
Q
Currey v Currey [2006] EWCA
A
section 22 MCA 1973 - Maintenance pending suit
22ZA and B were added
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance.
4
Q
AMS v Child Support Officer [1998] COA
A
we Don’t see this very often because if you have enough money to put aside a lump sum to pay maintenance then there should really be a clean break and just give that lump sum money to the other person, do not bother with maintenance.
5
Q
McFarlane v McFarlane: Parlour v Parlour [2004] EWCA
A
Distinction between lump sum and periodic payments. Parlour went to HOL with Miller v Miller said this distension between income and capital holds no relevance. Court held clean break was appropriate but held he had to pay very high periodic payments to get this lump sum. High income, low capital. HOL held it was fine to use periodic payments as a method to get a lump sum.
Held: The distinction between capital and income awards is no longer conclusive, having arisen in part from historical causes. Once each party had been put in a position to satisfy their reasonable income needs, the balance of available income could be divided between the parties:
6
Q
Fleming v Fleming [2003] EWCA
A
if you remarry then you automatically loose settlement arrangements, absolute rule.
28(3) MCA 1973
The husband and wife were married for 17 years and had four children. H had to pay W maintenance. The wife had been cohabiting for over 5 years. The judge, although he accepted that the combined incomes of the wife and her cohabitant were sufficient to discharge their combined living expenses, allowed the wife’s application for a variation of the periodical payments order, awarding her more money. The husband argued, inter alia, that the cohabitation was a quasi-marital relationship. Held: cohabitation was not to be equated with marriage did not need to be revisited and remained as sound now as it had been 15 years ago, notwithstanding social changes.
7
Q
North v North [2007] EWCA
A
Couple got divorced, both wealthy, husband required to pay wife 5p a year because she had thousands of pounds of wealth. She then lost all her money. 20 years later she asks for a variation of the order. HC granted her request which was upheld by COA. Held: the bad investments were not her fault so court thought this was fair.
8
Q
K v K (Periodical Payment: Cohabitation) [2005] EWHC
A
, if you live with someone new the HC said that these days living with someone is similar to being married so effect of re marriage should be the same if you start living with someone else. This was disapproved of in Grey.
IMPORTANT they had been fully involved in each other’s financial affairs. they had been fully involved in each other’s financial affairs.
9
Q
Fleming v Fleming [2003] EWCA
A
– although remarriage automatically brings to an end to pay, there is a discretion for the courts, it has no automatic effect. There is no presumption. It depends on circumstances, will take this into account when varying the order.
10
Q
Grey v Grey [2009] EWCA
A
courts discretion when cohabitation.
Sympathetic as I am to Coleridge J’s wish, in K v K (Periodical payment: Cohabitation) [2005] EWHC 2866; to move the law on and to achieve greater certainty for practitioners, I am satisfied that any change such as that proposed by Mr. Pointer would have to be introduced by Parliament. The power to award financial provision is statutory. There is a limit to the extent to which the courts can interpret statute.
11
Q
de Lasala v de Lasala
A
RATIO: Where capital claims are compromised in a once-for-all court order they cannot be revisited
12
Q
Hamilton v Hamilton [2013] EWCA
A
A lump sum payable in one go cannot be varied in the future. But lump sum payable in instalments can be varied before last instalment is paid. It will be a question of fact whether of not what was ordered by court was one amount of money or whether what was ordered was a number of separate lump sum payments. Each lump sum cannot be varied because it is a lump sum, but if it is one lump sum in instalments it can be paid. Question of fact if it is a series of lump sums which can be varied or not. In Hamilton although lump sum word was used, when looking at the order it was separate lump sums which therefore could not be varied.
13
Q
Petrodel v Prest [2013] UKSC
A
Supreme court, issue was could a wife get hold of assets belonging to husband, even though it was assets of a company he owned. Was that his property or husbands? Court found that it Is the husbands because there was one sole beneficiary which was the husband, the man and the company were the same thing so assets could be given to wife.
14
Q
Mesher v Mesher
A
Mesher order: named after case which it was named. Mesher order was made (sale of house) was made until youngest child became adult. You make this order where jointly owned house, wife stay in house with kids and then house will be sold after child has become adult. But decree of uncertainty.
15
Q
Elliott v Elliott
A
) long mariage 19 years, not lots of money both parties contributed financilly to pay mortgage so deal was that the wife stays in house until 18 birthday of youngest child then house will be sold and husband gets his share.
16
Q
Martin (B.H.) v Martin (B.W.)
A
Martin order: house is settled on trust for the lifetime of the benefiting spouse. No prospect for one partner being able to fund their accommodation. This is a lifelong obligation.
17
Q
Lake v Lake [2006] EWCA
A
court has powers to transfer a tenancy, this was a domestic violence case but can be done in a divorce package.
18
Q
T v T (Financial Relief: Pensions)
A
Court held that there is a disruption to use these powers they do not have to use S25E powers (pension sharing/attachment)
19
Q
Burrow v Burrow
A
burrow was 15 years till pension age. Court held with people that age the court should split the pension because we do not know if Burrow will live till that age. Plus difficult to predict the stock market. Therefore, unless close to pension age the pension will be splits.
20
Q
Aziz v Fisher-Aziz [2010] EWCA
A
if the wife in occupation of the final matrimonial home (having primary regard to the interests of the children) seeks the transfer of the property, in preference to the proceeds of sale of the property, she should ordinarily succeed
21
Q
Piglowska v Piglowski HL
A
couple with £127 thousand on assets who spent more than this on solicitors with how the assets should be divided. HOL held that the lower courts should take a realistic approach and not ignore the broader financial context. Courts should be realistic.
HL made clear that considerations in section 25(2) are not ranked in hierarchy.
22
Q
Practice Direction (Fam Div: Ancillary Relief: Costs) [2006]
A
appellate courts will only interfere with first instances where it is “plainly wrong”, only where a decision is plainly wrong will an appellate court interfere. We are not looking for a right answer but a reasonable answer.
23
Q
Vaughan v Vaughan [2007] EWCA
A
lower court judges should produce a balance sheet. What P1 walks away with and what P2 walks away with, write in on paper to check if this is a reasonable decision.
24
Q
Sharland v Sharland [2015] UKSC
A
There is a duty to provide a full and frank disclosure to the courts. MR SHarland owned company worth £60 million, he also owned £17 million. It was agreed that Mrs Sharland would get a £10 million sum, and when the company was sold, in some undefined future, she would get 30% from it when he sold it at some point in the future. But he did not tell the courts that he planned to sell it very soon, moreover, the business was worth much more than he stated. Court made the consent order, wife appealed that husband had not disclosed his assets. Yes, husband misled court, but court said you only need to deal with sum not known about deal with the new sum of money, do not need to rehear case, just need to apply it.
25
Schuller v Schuller
COA
Everything that belongs to both the spouses is available for redistribution by the courts, including the inheritance one party received after the divorce.
26
M v M [2004] EWHC
wife wanted share of husband’s future earnings, which was in the millions. Court said future earning as not entitlement where a clean break is possible. Can do what is fair without touching inheritance property or future earnings, if you need to the court can do this, but if you do not have to do this. The court will do what is needed to do when looking at fairness.
27
In Miller Lord Nicholls said
Short marriage and no children.
Mcfarlane: long marriage children. Wife gave up lucrative career. she should be compensated for the comparable position which she might have been in hd she not compromised her own career". - this comes from H future earnings.
these checklist factors apply to all marriages/civil partnership and in particular the courts will not discriminate between breadwinner contribution and other contributions (raising children), there should be no discrimination between the two. Fairness is the underlining principle; this means no biased in favour of either. Statute does not say apply equality, so fairness is not necessarily equal.
Ideally, if it is a family air loom then you can keep it, but if need to sell it to be fair that is what you will do.
In Miller, Baroness Hale identifies 3 factors
1) Need (give what they need)
2) Compensation (to compensate child rearer and money you haven’t earned etc)
3) Sharing (then anything that is left, you share it equality.
Hale was more reluctant than Lord Nichollas to make a distinction between business and relationship property, she said this is not a valid distinction because she would not know where to draw the line.
Lord Nicholls said where two couples share a property, if they lived in it together as a couple this is always possible for redistribution EVEN where man solely owns the whole house.
28
Robson v Robson [2010] EWCA
, Lord Justice Ward said husband had 22 million in assets, he was breadwinner, she was child rearer, married 20 years, children had grown up, wife given 8 million on basis that husbands 22 million was acquired before marriage as inheritance assets. Husband appealed against 8 million award saying to give her that much you would need to sell property and this would-be detriment to him and business arrangements, court agreed and reduced sum to 7 million to reach the requirements, need, compensation and sharing. 8 to 7 million can avoid drastic businesses. Court says we depart from equality here because it is in no one’s interest for husband’s business fails.
29
Green v Green [2006] EWHC
where spouse/partner is a trustee of property belong to another property, this is not within the courts discretion and cannot redistribute.
30
Whaley v Whaley [2011] EWCA
where one party is a beneficiary of trust this is different. husband order to pay lump sum of £7 million to ex wife, he could only access 7million by accessing trust fund of which he was a beneficiary. Husband appealed that court has no power to make trustees act in a different way that they would have. LJ Black said wording of s25(2)(a), it is the “resources the parties are likely to have in the future” and here it is what is the attitude of trustees, would they pay the £3 million to wife, if trustees had no problem then this was family property, if they refused or were reluctant than it was not family property. Here, the trsutees who were parents would pay so it was family property.
31
Petrodel v Prest [2013] UKSC
husband assets owned by company, as he was sole beneficiary of company they were his, so they were available for redistribution. Look at realities not the technical legal paper.
32
Hardy v Hardy (1981)
Hardy earned £70 a week, working for his farther, in some point in future he would inherit his father’s lucrative business, Mr Hardy’s current lifestyle was not of a person earning £70 a week so his dad obviously gave him money Court held he should be required to pay money which reflects his true wealth not his paper wealth so wife got a bit more money. Could not have a lump sum because do not know when H wold get money in future when dad died unknown
33
Hutchings-Whelan v Hutchings [2012] EWCA
lump sum paid to wife, then discovered that husband had other considerable assets, once discovered, he still would not say how much he got, the wife then had to make a guess. The court then had to guess the reality of situation and husband got the order on the basis of the guess.
34
N v F (Financial Orders: Pre-Acquired Wealth) [2011] EWHC
) man gave up lucrative job in city to become a teacher, wife said he should be judged on basis of what he could be earning in the city, rather than the £55,000 being a teacher. Court did not agree, he had given up job in city to be a teacher, this could not be accounted against him. In this case, he did not give up lucrative job to avoid paying money to wife so it can’t go against him.
35
Leadbeater v Leadbeater [1985]
Mrs Leadbeater gave up job to be a housewife, marriage lasted 20 years, how much could she be expected to earn after divorce, court decides that as a woman who was 47 she is too old to retrain for work that would earn her a decent amount, she had previous experience but this was out of date, she would only be able to work which gave her a modest income.
36
Launder v Launder [2007] EWHC
court talks about the needs to compensate wife for her giving up job and being a housewife, years she has scarified. Reduced earning capacity is something which is to be compensated for.
37
Macey v Macey [1982]
resources of new partner may be relevant, reducing news of the ex spouce.
38
Atkinson v Atkinson [1987]
marrying someone automatically extinguishes the right of maintenance, but in this case she just moved in with another man, this did not distinguish the maintenance but reduced obligation fort he amount hte husband had to pay.
39
Suter v Suter [1987]
moved in with new man she received maintenance for her and children from husband, husband goes to court for variation. Court would not end maintenance all together because unsure how long her new relationship would last, so husband would have to pay a nominal sum of £1 per year.
he duty to consider the children first, was neither a duty to consider them first in time, nor to give them paramount importance. In fact the phrase has been criticised as meaningless.
As to conduct: ‘It is right, having regard to the wife’s conduct in inviting the co-respondent effectively to live in the matrimonial home without requiring him to contribute anything to its costs, to reduce the periodical payments to her so as to reflect the amount which the co-respondent could and should contribute. Such conduct can and should be taken into account under section 25(1) in assessing the appropriate level of periodical payments’
1) s25(1) first consideation does not mean paramount - clarified.
40
Hepburn v Hepburn [1989]
lived with new partner after divorced, received maintenece of 7 years whilst living with partner, husband applied for maintence to end. Court holds that it was not certain that wifes relationship would last with new man so nominal order was not made
41
Fletcher v Fletcher [1985]
husband was unemployed, paid maintence to his ex wife but could not afford to pay because he was on unemployment benefits.COA said where someone is on job seekers allowence then there is no spare money in that persons income, this money of benefits is to keep them on poverty line and the courts will not take someone below povety line.
42
Ashley v Blackman [1988]
both parties on benefits, should husband be obliged to pay maintenance to wife? Held: no any money paid to her takes him below poverty line (Fletcher) and any money given to her means less job seekers allowance. Therefore, there should be a clean break and the public should give them benefits.
43
Vaughan v Vaughan [2010] EWCA
couple married for 13 years and got divorced, husband remarred and had kids, 20+ years later, ex wife applies for maintencce, the judge worked out her needs in reference to his income by declaring half of his assets void for this case because husband had a second wife. COA held that was wrong, when considering husbands needs, court should not think of a hypothetical need to fund divorce, it seemed wifes needs was less because it was less to give her. When working out needs, it is not hypothetical it is the current situation.
44
Fisher v Fisher [1989]
wife was pregnant and unborn childs farther was not husband, husband thought he did not need to pay her because he is not farther of the child. Court held that her needs are her needs we do not make moral jdugements about how those needs arose. So the husband did have to pay more but the courts held that they made a pragmatic approach.
45
M v B (Ancillary Proceedings: Lump Sum) [1998]
a farther living separate from wife and kids needed accommodation so his kids could visit him. A legitimate need.
46
Campbell v Campbell [1998]
828 husband lived long way from where he worked, he said these costs should be taken into account with his needs. Held: he chose to live away from workplace, this was his chose, he did not need excessive travel to work costs.
47
Dart v Dart [1996]
before white
Mr Dart was wealthy, he applied for divorce against himself to avoid 50/50 which was set in America. Wife was given 9 million pounds, but he had 400 million, this is less than 3% of total assets. Reasonable needs means that one person keeps most assets, and the other gets paid a modest amount.
48
White v White [2000]
Critical of Dart, HOL spoke of the need for fairness this prima facia means equality. Lord Nicholls said “Reasonable requirements” is not a helpful term,
1) Faireness "like beauty, lies in the eye of the beholder"
2) Non discrimination principle "there can be no place for discrimination between husband and wife in their respective roles" - Lord Nicholls "no bis in favour of the money-earner and against the home-maker and child carer"
3) A judge should check his views against the "yardstick of equality of division". Equality should only be departed from if there is a good reason for doing so.
4) there should be no presumption of equal division nor as starting point
5) Lord Nicholls - property before the marriage should be kepts by that spouce in fairness. But where the claimants needs cannot be met this property will be taken into consideration.
In White it said the starting point was fairness requires an equal division unless some situation occurs. Rule of thumb. A couple with farming lands, husband made super farm. At first instance wife did not get much because the court did not want to break up this business, this led to her getting less than she even put in. COA, supported by HOL, you should get out what you put in at least, so sale of farm, she got 2/5 total asset, he got 3/5th = what they put in.
49
P v P (Inherited Property) [2005]
main family business was a farm, in order to achieve a 50/50 split it would have been necessary to sell farm to release the cash but this would mean family would have no business so future would be shaken so it was decided that it was okay to depart from equal divisions where equal divisions will “kill the goose which lays the golden egg” (as said in white). So in this case. P was allowed to keep farm so instead of clean break there was generous maintenance, this led to unequal distribution, but equality was separated from because it would have undermined the future finances. Lady hale in miller supported this decision.
50
Cowan v Cowan [2001]
| coa
Following White, couple were wealthy, totally assets 11.5 million, at first instance wife was awarded 2. 3 million (20%) of total assets, more than wife got in the Dart case but husband still got a lot more. Wife appealed, she was successful to an extent, award was to 4.5 million (40/60 split) which is better than what high court did but court can no need to go further for equality because in this case families wealth was due to the husband and his “stella quality”. This is a challenge to White, where one party is especially “stella” then specifcal contribution should be attributed to him.
51
G v G (Financial Provision: Equal Division) [2002]
husband was architect and successful had 8.5 million. Wife did not work, on divorce he said he deserved 60% total assets to reflect special contribution to the family (Cowan v Cowan). The Judge Coleridge was cynical on arguments based on stella quality. In past husband says wife should get less for conduct. But in Watsaw 1973, conduct was dealt with on divorce application it should not be deal with on financial relief because it is not based on moral judgement. Stella quality could undermine white. Could not overrule because COA talked of stella quality and he was only HC. But he did not declare 60/40 split only a 50/50.
Lady hale in Miller approved these passes, it was approved by SC.
52
Lambert v Lambert [2002] EWCA
G v G COA given greater authority. Same judge. Lambert set up newspaper before met wife, sold it for 75 million, and he got £20 million, Mrs Lambert got £0.5 million. They then got divorced and she wanted half of the £10 million he said this was unfair because he had “stella quality”. Compared to Cowan who developed business worth £11 million, here Mr Lambert built a business worth 75 million surely he had stella quality? Held: no he did not for policy reasons for in White it was said contribution of both should be treated equaly, even where one party was more successful in making contributions and a driven successful person so contribution to household stuff is minimal. So what you gain in financial success you lose in other contributions. It does not overrule Cowan.
53
Charman v Charman [2007] EWCA
Case of stella quality. Mr Charman worked in insurance and earned £160 million, held this should be recognised as justifying a departure from equality even though marriage was of 30 years. Wife got ¼ of assets due to exceptional husbands particular quality for creating massive wealth. Court also said that where special contribution recognised the division should be at least 55/45, no closer to equality than that, but no more of an disparity of 66%/ 33% so even in case of most exceptional case there should be no disparity, but saying that, in this case itself is 75/25. This advise has been largely applied. This advise has largely been ignored.
54
Gray v Work [2015] EWHC
Last year, courts do not like stella argument. Husband made millions. Held: he was an average highly successful business person but not have “stella quality”.
55
Miller steller quality.
Husband had assets of £32 million, how much should wife get? Held: £5 million out of £32 million. 1) particular contribution of husband and especially as he had most of this money before he met his wife. 2) marriage only lasted 2 years 9 months. In this situation, it is unfair to recognise the vastly different contributions to their joint wealth.
56
Wells v Wells [2002] EWCA
couple ran business which was seasonal and prone to effects of rescission. Where is a flux of living you take an average over time.
S v S s 25(c)
look at two things
1) Standard of living before divorce (standard of living during marriage)
2) How long they had been marriage
57
A v A (Financial Provision) [1998] CA
It is an objective standard. Couple will £millions in bank but lived frugal existence at husbands insistence, she divorced him, he said she should not get much because we have always lived like this. Hled: due to the money in the back we will objectively judge you based on what you should have been living at, whether you do or not is irrelevant.
58
Lambert (supra)
Lambert had a 23 year marriage and gave up “the best years of her life” to be a wife and a mother so said she should be compensated for this.
59
Foley v Foley (1981)
if you cohabit before marriage this does not count, it may be relevant of the conduct factor (1(2)(g)), but it is the length of marriage which is relevant here.
60
GW v RW (Financial Provision: Departure from Equality) [2003] EWHC
where there has been a seamless transition from cohabitation to marriage the courts should consider the whole duration of the cohabitation/marriage.
61
Hill v Hill
couple got marriage and then divorced after a year then lived with each other for 21 years as unmarried people. COA said it would be “inequitable” that although short marriage, long relationship.
62
A v A (Elderly Applicant: Lump Sum)
wife had been successful business woman, husband was less well off than wife. They got divorce, he wanted a lump sum they were together for 30 years. She argued that his life expectancy was low (he was ill etc) so the award should be reduced to take into account the fact he could not spend money. Court held no after long marriage there should be no discrepancy.
63
C v C (Financial Provision: Personal Damage) [1995]
Mr C got 5million in bank but this money had been awarded due to an injury he suffered which he had been awarded to compensate him for affects of the negligence. Couple got divorced, she wanted a share of his 5 million but she got nothing even though this left her on state benefits she got nothing because he got this due to the injury.
64
H v H [2007] EWHC
50/50 split not withstanding that husband earnt millions and wife earnt nothing just raised kids, her contributions are just as equal as his.
65
Kyte v Kyte [1987]
wife gave him sleeping pills and encouraged him to kill himself, the husband had manic depression so she could get the property. Test: Would a right thinking person reduce the contributions of that person.
66
Evans v Evans [1989]
conspired with others to kill husband 35 years after divorce, husband makes a variation order. Court held: he does not have to pay anything considering as she tried to kill him.
67
B v B (Financial Provision: Welfare of Child and Conduct)[2002]
couple split, one child who stays with mum, farther abducts child, he gets sent to prison, main assets was family home £120,000 where wife lived with child/ Held: she needed this accommodation so she got the whole house he got nothing.
68
H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC
wife beats up wife in front of kids, wife is badly injured that she cannot work for foreseeable furture, husband in prison. Held: 75% /25% split to recognise the bad conduct of husband.
69
K v L [2010] EWCA
married in 40s she has kids from previous marriage, he is convicted of sexually abusing the grandchildren. She wants divorce, she had millions of pounds and he had much less money, he applied for financial relief, he gets £100,000 and outs of this money he has to pay her costs of £50,000. This reflects his extremely bad conduct.
70
A v A (Financial Provision: Conduct) [1995]
| CA
husband was lazy, would not get a job, wife had a job and main carer for kids, court held that there was a significant discrepancy between her conduct and his conduct and his should be reflected in the court.
71
Suter v Suter [1987]
after divorce, the wife pays half the mortgage and husband was required to pay other half so that kids could have somewhere to live. He appealed what about the wifes new husband? Up to new husband to pay the other half of mortgage. Court held: nominal payment had to be paid by husband.
72
Richardson v Richardson (No.2) [1994]
kids over the age of 18, 25(1) does not apply, but do not have to ignore their interests.
73
Leadbetter (supra)
accepted in this cases, where parent has a young pre school child, the parent cannot work so court has to work around this.
74
Piglowski (supra)
said by HOL the courts main job is that there is somewhere appropriate for the kids.
75
K v K (Ancillary Relief: Prenuptial Agreement) [2003]
said the children have an expectation at the divorce that their lifestyle should not be that dissimilar from the other partners (the dads who is rich)
76
M v M [1987]
successful appeal by wife who was awarded maintenances with a 25A(2) attached, 20years since work. COA could not see when she was financially independent, court held when making this order you need to see when in the future they will be financially independent
77
Flavell v Flavell [1997]
2 years maintenance for woman with young child, she should work in 2 years. COA deletes 25(A) provision and says the courts had been too ready to make orders under 25A, you need to be sure you know the person will be financially stable when making the order.
78
Fleming v Fleming [2003] EWCA
had not attacked 25(A) order, wife with new partner both together earnt £45,000, looked like she didn’t need maintenance as she would be financially viable soon.
79
McFarlane v McFarlane; Parlour v Parlour [2004] EWCA
Much income, little capital. HOL with Miller. COA held that making order for 5 years’ duration because considerable money will be transferred in this period so she will be supported. Lord nicolls in HOL said it should be the payer to say that they do not need to pay anymroe, not for the recipient to go to court to ask for continued maintence
80
L v L (Financial Remedies: Deferred Clean Break) [2011] EWHC
contrast Leadbeater
L
1283 woman had a good job, even though she was in late 40s, she was successful, chances were, she would not need any future help from her ex.
81
Barder v Barder (Caluori) [1987]
when considering leave 4 things should be considered.
1) Has a fundamental assumption on which order was made been invalidated by some subsequent event?
2) Has these events happened quickly after the order?
3) Was application to reopen the order made promptly
4) The court has to consider whether any bona fide third party be affected by the order?
82
Williams v Lindley [2005] EWCA
wife told court and husband that she lived with new partner but lived with him as a housekeeper. She was given a lump sum to meet future housing needs, but then few weeks later she married her alleged employer. So, she lied to the court, so the fundamental assumption was invalidated, so case was reopened.
83
I v I [2009] EWCA
husband was up for promotion and this would give a pay rise. He did not give a full and frank disclosure; the court would have done differently if known.
84
Richardson v Richardson [2011] EWCA
do not need to reopen whole case, just the assets which have come to life. Wife had died 6 weeks after clean break settlement, husband said that he wanted money back because it now went to family. COA held this was not a significant event because wife’s clean break was based on compensation sharing.
85
WA v Executors of the Estate of HA, Deceased [2015] EWHC
former husband shortly after clean break settlement, committed suicide less than a month later, wife wanted £17 million back. HC said it was a significant change, but in this case it was significant because a big chunk of the millions was for his future needs so it was replaced for £5 million sum to reflect compensation and sharing.
86
Hyman v Hyman [1929]
pre-nuptial contract
| a wife cannot contract away her ability to go to court s34(a) – says this now.
87
Edgar v Edgar [1980]
pre-nuptial contract
Court has discretionary checklist to follow, you try and balance on one hand that people enter agreements willingly then the court should keep them into agreements but you balance this on what is fair, duress, legal knowledge/advice, informed consent, has something drastic changed, e.g having childs.
88
Macleod v Macleod [2008]
pre-nuptial contract
Rule of recognition post pre numpt. Recognised that if agreement is made AFTER marriage then prima facia this should be upheld. Bareness hale said we need to treat people as adults.
"We must assume that each party to a properly negotiated agreement is a grown up and able to look after him- or herself. At the same time we must be alive to the risk of unfair exploitation of superior strength.
WW v HW (Pre-Nuptial Agreement: Needs: Conduct) [2015] EWHC
Hopkins v Hopkins [2015] EWHC
89
Crossley v Crossley [2007] EWCA
pre-nuptial contract
pre nuptial agreement upheld based on facts. Both parties had million pounds wealth and kids from previous marirages, they agreed before marriage to a pre nuptial agreement. Court recognised the agreement they made and did this. Because on these facts it was right.
90
Radmacher v Granatino [2009] EWCA
pre-nuptial contract
“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” ([75]).
1) did they take legal advice,
2) emotional state - what pressures she was under. This will include age and maturity, whether either had been marriage before.
3) foreign element.
4) Unequal bargaining power
involved german lady of £54million and married X. He signed a pre nuptial agreement to agree to take nothing if it all went wrong. It did go wrong but they had 2 kids, married for 10 years. Husband gets award £5.5 million (10% assets) this is a big departure from equality so the contract was recognised by court, he got a smaller award for reason. Wife appealed, SC held:
1) public policy rule against pre nuptial agreement is gone.
2) We agree with Bareness Hale and we should recognise the agreements as a valid thing and not disagree with it: autonomy
3) But the real test is fairness(white and Miller) apply,
SC said we cannot just apply pre nuptial agreement without thinking of it, we have a discretion which we exercise, the real question is is it fair, a contract entered into voluntarily is fair but the courts should enquire as to whether this is actually the case, duress,f raud or misrepresentation, pressure which is unconsciousbale, exploitation of bargaining position to take advantage and majority jdugeemnet that we should consider the parties emotional state, did they take legal advice, would the marriage have occurred if the pre numptial agreement was not signed, foreign element – Germany recognises pre numptial agreement, children, does agreement recognise what hppens to the children. Question is in particular case, is it fair?
91
Hopkins v Hopkins [2015] EWHC
pre-nuptial contract
Same as WW v HW
took legal advice and ignored
92
Gray v Work [2015] EWHC
pre-nuptial contract
pre nuptial contract, wife had no money she promised she would take no assets if it went wrong, but after they marriage he got futher property and required her to sign the postnuptial agreement saying that you can go to court. Husband tried to enforce pre nuptial agreement but the postnuptial contract undermined the prenumptal.
93
V v V (Ancillary Relief: Pre-Nuptial Agreement) [2011] EWHC
welathy husband with several million, wife was a student, signed prenumptial contract that she had no claim on her assets, marriage 5 eyars had two kids, the contract sad nothing about kids. Wife goes to court and gets 50/50 split that she gets matrimonial home transferred to her. Husband appeals on basis of prenuptial agreement, this is successfully to an extent because having kids changes dimamic of situation, wife cannot work now, but she did enter it willingly. Held: she gets matrimonial home but husband gets ¾ of house equity. The contract did not provide as to what would happen if they had children.
94
Kremen v Agrest [2012] EWHC
husband had at least £30 million, the court was unsure, court agreed to a pre numpt of £1.5 million if something went wrong, she seeks financial relief and the court ignores the pre numpt all together, because she did not understand English law, she did not get legal advice and there was significant duress from husband. Significant wealth accumulated during marriage when she was his wife. Court gave her 50% ish of what they thought he had.
95
Atkinson v Atkinson (no 2) [1998]
The wife had received a capital settlement and maintenance. She then cohabited, the husband argued that to all intents and purposes his ex-wife had remarried but she had held back from doing so as she did not want to lose her maintenance. Held: cohabitation was relevant only insofar as it reduced the wife’s needs. There was a reduction in maintenance to reflect what the cohabitee should have been contributing.
The Court of Appeal said there was no statutory requirement that a court should give decisive weight to the fact of cohabitation. If the court were to do so, it would impose an unjustified fetter on the freedom of a former wife to lead her own life as she chose following a divorce.
96
Does cohabitation affect maintenence orders
Atkinson v Atkinson (1998)
Fleming v Fleming (2003)
K v K (2005)
Grey v Grey (2009)
97
K v L (Ancillary Relief: Inherited Wealth) [2011] EWCA
married, neither did any work because wife had significant inheritance wealth £50 million at time of divorce, husband never worked, he got 5 million pounds (10%) he appealed. Both lookef after children. For wealth they lived modestly. COA upheld decision, 5 million was enough to continue living life as before, unfair to wife to share pre-existing property with him.
98
N v F (Financial Orders: Pre-Acquired Wealth) [2011] EWHC
Long marriage - husband had 2.1 million at time of marriage, they got divorced, in meantime husband gave up lucrative job in city going from 1 million salary to much £55,000 as he became a teacher. Total Asserts is 9.2 million, he had 2.1 million at time of marriage. Court held this 2.1 million would have become 4.2 million due to inflation. Court asked whether these 4.2 million assets had ‘mingled’ with the marriage, if you put money in marriage then it is clearly available for redistribution, but if it is not then it is not. Court held that husband could keep 1 millions of initial £2.1 million. Court held that as this was a long marriage, these assets would have mingled with the family. Wife got 45% of total assets in this case.
Held: approach to pre-acquired wealth is fact specific and highly discretionary
99
Jones v Jones [2011] EWCA
post separation assets.
Company worth less then separated then worth a lot within a year. Held: it fell under resources of parties
because that increase was due to the latent value of the business at the date of separation and not to a new venture.
100
B v B (Assessment of Assets: Pre-Marital Property) [2012] EWHC
– couple got marriage when husband 40, wife 21, husband had £800,000 at time of marriage, marriage lasted 15 years. Total Assets = 4 million at time of divorce. Court held that he should keep the whole £800,00, he started off with at the beginning of marriage as enough for both parties without assessing this.
Conflicting two conflicting principles
1) Treat people equality
2) Recognise that one person need more than another.
101
S v S (Ancillary Relief after Lengthy Separation) [2006] EWHC
After separation but before couple got divorced for 7 years after. During 7 years’ husband set up business and considered more wealthy than when they were together. After 7 years, the wife wanted money post relationship wealth, her argument was that she had not taken him to court back then and had she had taken him to court back then, then his money would not have created this successful business. Court held this does not fit in with needs, compensation, sharing framework, she got what she would have and a bit more but nothing significant.
102
Gordon v Stefanou [2010] EWCA
marriage, 7-year separation and then got divorce, husband then became major shareholder in business, wife went to court, she said it was work £30 million, he said it was running a loss. After hearing, the husband sold business for £30 million, the judge said he was in breach of full disclosure, but made no difference, the main point was that this business had been built after the relationship. Therefore, wife’s appeal was unsuccessful,
103
Vince v Wyatt [2015] UKSC
Two-year marriage, couple at this time were travellers and had no money/assets. They had a son, wife had daughter from previous marriage who husband treated as a daughter. Two-year marriage, kid stayed with mum. Husband set up a business which was successful, he became a millionaire, 31 years after end of marriage, she made application of ancillary relief. You can apply for ancillary relief many years after divorce. SC found in her favour, 2 kids, she brought kids up after marriage, her contribution continued post marriage because contribution is more significant than considered. Claims can be made after long time of marriage in a suitable case.
104
Jones v Jones [2011] EWCA
10 years’ marriage, wife given 5 million out of £25 million(20% total assets). On basis that when they got married, husband already owned an oil company, sold at end of marriage, court held that he should be able to keep that money. She appeals. Court of appeal agreed, correct approach:
1) Work out pre-existing assets then and now,
At time of marriage there was £2 million, business had grown so now worth £9 million, husband keeps this. £16 million generated through marriage should be divided equally.
105
White v White
1) Fairness should dictate
2) if couple have long relationships and excess money 'reasonable requirements' should not be it.
3) No discrimination between men and woman in their respective roles... whatever the division of labour, fairness should not be discriminatory. 'There should be no bias in favour of the money-earner and against the homemaker and child-carer.
-Lord Nicholls
"as a general guide, equality should only be departed from if, and to the extend that, there is good reason for doing so". Judge should check his views against the yardstick of equality of division.
Discriminatory and so unfair for an earning spouse merely to meet his non-earning wife's needs out of his capital and keep the rest.
106
Miller v Miller; McFarlane v McFarlane
```
Lord Nicholls
The requirements of fairness are within three strands:
1)needs
2) compensation
3) sharing
```
1) The matrimonial property, brought in by one party is matrimonial property.
2) however long or short the marriage is, the principle of entitlement is the same
3) Matter is different regarding non-matrimonial property, then the duration of the marriage will be highly relevant. However, (white) this factor will carry little weight where the claimant's financial needs cannot be met without resource to this property.
4) in case of short marriages, fairness may require that claimant is not entitled to share other's non matrimonial property.
5) in long marriages, non matrimonial money will have less weight than a valuable heirloom.
Hale said:
1) in white it was said that: source of assets will dimish over time. It becomes mingled.
2) money generated together much be split, even business money.
3) Hale acknowledged that source of assets take into account but this will be diminished over time.
4) s25(2)(d) the duration of marriage: if assets are not 'family' assets or generated by joint efforts of parties then duration of marriage may justify a departure from the yardstick of equality of division.
Hale said family assets are those generated by the joint efforts of the parties. Non family assets are business assets generated solely or mainly by one partner. Like premarital property, inheritence or gifts, non-family assets; a departure from their equality of division may be justified. But the importance of their designation will diminish over time.
"ultimate objective is to give each party an equal start on the road to independent living"
