Subjects:

Family Law, Key Annual Titles

....from the Preface

The most momentous event in the development of ancillary relief law over the last year has been the decision of the House of Lords in Miller v Miller; McFarlane v McFarlane. The House has given guidance, not always in unison and thus not always completely comprehensibly, across a whole range of issues affecting the resolution of cases from huge to small. The concept of marriage as a partnership has been firmly established and, subject always to the question of need, the yardstick of equality is likely to be shaken forcefully against ‘matrimonial property’ (however delimited).

Conduct and ‘specialcontribution’ will only be taken into account in the most exceptional circumstances. Awards of future income will not be confined to cases of need as an earning capacity may be regarded as an asset of the partnership to be divided or to meet a claim for compensation.

Of course the decision leaves many enigmas unresolved and demonstrates variations of approach. There are unanswered questions not only of principle but also of practical application, and overall the speeches do little to stave off that uncertainty of outcome which a combined chorus of parties and practitioners bemoan. A thorny issue is whether or not post-separation accrual qualifies as ‘matrimonial property’.

This has given rise to some discordant decisions at first instance:-

• Is a matrimonial home, even if acquired prior to a marriage, always to be regarded as matrimonial property?
• Do caravans have some quintessential quality about which we should be informed?
• Does a continuing and disparate earning capacity justify departure from the yardstick even where all needs have been otherwise met and there is no question of compensation?
• With which rod does one divine the watershed between what conduct it is equitable to disregard and that which it is not?
• What are the boundaries of special contribution: is genius a necessary ingredient, and (if so) is genius as immediately recognisable as a gnu by those (including perhaps even some judges) who have never encountered the phenomenon before but have only heard it described?
• Are trust assets to be regarded as matrimonial property, or only sometimes?

Since the last edition Pension A-day has come and gone, but the regulatory changes have not as yet thrown up any particular difficulties in the treatment of pensions in ancillary relief proceedings. The decision of the Court of Appeal in Martin-Dye emphasises the special nature of pension assets and gives a clear steer in favour of direct pension sharing rather than off-setting in cases where such assets exist.

There have been no reported cases about the New Costs Rules. We have ventured some observations about their intended effect and how courts should be expected to implement their underlying ethos.

The new Court Bundles Practice Direction is weightier than and will produce weightier bundles and accompanying preliminary documents than its revoked and (with the benefit of nostalgic hindsight) lamented predecessor, and has had some teething problems. A Practitioners’ Commentary expresses some grunts from the coalface.

The discordant clamour with which the Child Support Agency has echoed down the years rumbles on. Following Sir David Henshaw’s report the Government has published a White Paper proposing the creation of yet another régime with the almost unbelievable prospect of a transitional but hardly transitory interregnum while the two existing regimes and the newest ‘2008’ [sic] régime will operate in parallel. [Sic] indeed although no joke, as it will operate (for some cases only) only from 2010, and then only by starts (and no doubt fits) until universal operation from 2013. So breath should not be held. Can this though mean there will be no further legislative fine-tuning (or tampering) until 2013? It might be reassuring to hope so, but in fact in at least one area we hope there will be reappraisal.

For the Government has thus far set its face against restoring any of the court’s powers, although the wisdom of this has been questioned not only by the legal profession but also by the House of Commons Work and Pensions Committee. Restoration of the power to award child maintenance in cases where there is already some dispute between parties already before the court is fair, practical and economical. It would lead to more cases resulting in comprehensive and enduring compromise or award and is strongly to be supported.