Financial Remedies Journal - 2023 Issue 3 | Winter

2023 - Issue 3 - Winter

Issue 3 of 2023 was published in November 2023.

Download the whole Journal as a PDF (for free) below.

All articles in the Journal are also available individually.

Financial Remedies Journal 2023 Issue 3 Digital

Financial Remedies Journal 2023 Issue 3 Digital.pdf

Chair’s Column (Winter 2023)

Chair’s Column (Winter 2023)

Once again, I am very pleased to commend to you another issue of the Financial Remedies Journal packed with compelling and engaging material. Peel J looks back on his first year in charge of the Financial Remedies Court (FRC), finding it for the most part in good health, and looks

HHJ Edward Hess | Chair of the Editorial Board

The Financial Remedies Court: A Year in Review

On 28 July of this year, Mr Justice Mostyn sat for the very last time. Many words have already been said or written about him. I particularly enjoyed the appreciation of him by Sir James Munby, which was published in the summer edition of the Financial Remedies Journal.[[1]] Few

‘An ascent so steep as to make a meteor blush’ – The valedictory for the Honourable Mr Justice Mostyn, 3 October 2023

On Monday, 2 October 2023 history was made in Court 4 of the Royal Courts of Justice, with the swearing in of the first ever Lady Chief Justice of England and Wales. Just a day later, in the very same, similarly packed-out court room, Lady Carr crossed the rope to

Financial Remedies: The Law Commission’s Scoping Project

On 4 April 2023, the Law Commission announced that it would be undertaking a project to review the current law governing financial remedies on divorce or dissolution of civil partnership.[[1]] The purpose of the project is to determine whether there are problems with the current law that require reform,

Hasan – The Barder Conundrum – A Final Word (We Promise)

The Supreme Court’s judgment in Hasan was handed down on 28 June 2023. Most readers will by now be at least peripherally aware of what the case was about. This article is to some extent a continuation of a blog post written by one of the authors for this

Are We Clear? Transparency and the TIG Financial Remedies Sub-Group Report

Many meetings, much discussion and a fish ’n’ chips (working) lunch later, the conclusions of the Financial Remedies Sub-Group (the Sub-Group) of the Transparency Implementation Group (TIG) were published in April 2023. Established by the President of Family Division and led by HHJ Stuart Farquhar, a group of 13 – judges,

Just Deserts? Unjust Enrichment for Family Lawyers

In the aftermath of many family relationship breakdowns, second only to complaints about bad behaviour, a pervasive sentiment arises: one party believes they have invested or contributed disproportionately to the family economy, family assets or businesses, leading to perceived unfairness. Whilst statute provides a framework within which such considerations can

The Jurisdiction of the Family Court to Determine Property Disputes in Favour of Third Parties

Introduction The Family Court does not have Trusts of Land and Appointment of Trustees Act 1996 (TLATA)[[1]] jurisdiction.[[2]] This creates a particular problem for proceedings in a Family Court which is not also a county court, most obviously the Central Family Court (CFC) in London. This article, although

To Advise or Not to Advise – An Abundance of Caution? What Limitations Can Be Imposed and What are the Parameters of a Family Law Solicitor’s Duty?

‘I did not have the money, and she did not have the time’ said Joanne Lewis, during her evidence before HHJ Coe KC at a final hearing in November 2022 (with judgment handed down on 31 March 2023) to determine Mrs Lewis’ professional negligence claim against her matrimonial solicitors, Cunningtons

The Thwaite Jurisdiction – A Stay of Execution?

The very existence of the Thwaite jurisdiction is controversial. Thwaite, Benson and L v L Its origins are (unsurprisingly) found in Thwaite v Thwaite [1981] 2 FLR 280. A consent order was made for the transfer of the matrimonial home in England to the wife on the basis that she

Remarriage: Avoiding the Elephant Trap

This article is a practical guide to the legal consequences of a second (/third/fourth/fifth, etc) marriage, to assist when advising clients how to avoid falling into the ‘elephant trap’ of premature remarriage – a term coined by the late Singer J. It can be a messy topic, and it

The Pensions Ombudsman for Family Lawyers

Status of the Pensions Ombudsman The Pensions Ombudsman (TPO) is constituted under the Pension Schemes Act 1993 (PSA 1993). TPO may investigate and determine any complaint made to them in writing by or on behalf of an authorised complainant who alleges that they have sustained injustice in consequence of maladministration

Child Maintenance in Cases of Equal Shared Care

The situation: two parents share childcare seemingly equally but there is a significant income imbalance. The issue: how is child maintenance determined? Does the Child Maintenance Service have jurisdiction? Does the Family Court have jurisdiction? Do neither? This article aims to address these questions, albeit in circumstances where the relevant

Non-disclosure, Occupation Orders and Transfers of Tenancy

When a couple separates, either party may be able to apply for one or both of two powerful property-focused remedies. The first is an occupation order. This regulates occupation of a family home, permitting (perhaps with conditions) occupation by one or both parties and restricting, prohibiting and perhaps terminating occupation

Spousal Maintenance By Formula: The Canadian Experience

Introduction The recent announcement by the Law Commission that it is conducting a review into the laws which determine how finances are divided on divorce has re-ignited the discussion as to whether the law on financial remedy provision in England and Wales should be reformed. One of the areas which

The Other Half

Solicitors acting for clients in divorce and financial proceedings have a symbiotic relationship with those clients. They provide the solicitors with fees, which are the lifeblood of any law firm, and in turn the solicitors provide the clients with advice and legal representation at one of the most fraught periods

AS v CS: What are the Consequences if the Court Has Not Mandated a Private FDR?

The duty of the court to direct that a financial remedies application must be referred to an FDR appointment is set out in Family Procedure Rules 2010 (SI 2010/2955) (FPR) 9.15(4). Pursuant to this rule the court must direct such a hearing unless: (1) the first appointment,

DR Corner: FPR Part 3 – Out-of-Court Dispute Resolution Options – Perils and Possibilities

Opportunities for resolution away from the court have never been greater – mediation, early neutral evaluation, private FDRs, arbitration – and practitioners continue to take up training in these disciplines. However, although the use of out-of-court resolution continues to increase, too many cases remain within the overburdened court system, cases for which

Tech Corner: NeedsMet

Whether we like it or not, the age of ‘do-it-yourself’ divorce is here. In 2022 there were 80,443 divorces and dissolutions finalised in England and Wales (latest HMCTS figures). In the same 12-month period there were just 31,277 financial remedy disposals (HMCTS terminology for, in essence, a final

Money Corner: Welcome Change to Capital Gains Tax Rules on Divorce

For many years, capital gains tax (CGT) has often been a major stumbling block in financial settlements. Transferring assets around could give rise to tax liabilities in the hands of the transferring spouse who is usually not receiving any sales proceeds with which to pay what is known as a

Book Review: Dictionary of TLATA and Inheritance Act Claims

In the world of legal writing, where clarity and precision matter most, the Dictionary of TLATA and Inheritance Act Claims shines as a valuable source of knowledge. It helps lawyers understand the complex connections between family law and the laws related to trusts and property. Written by an impressive group

Financial Remedies Case Round-Up (Mid-April to mid-September 2023)

A spate of proprietary estoppel cases In the previous issue, I wrote about the increasing number of reported nuptial agreement cases. In the time period covered by this issue, the tendency has been towards proprietary estoppel cases. Certainly, published judgments can appear rather like buses, several at once and then

The Summary of the Summaries (Winter 2023)

Cummings v Fawn [2023] EWHC 830 (Fam) (Mostyn J) W’s appeal of a judgment, which had seen her held to a Xydhias agreement, was allowed on the basis that the first instance judge had not properly considered how W’s housing needs and debts could be met, nor that

The Financial Remedies Journal 2024 Undergraduate Essay Competition – Watch this Space!

The editorial board of the Financial Remedies Journal is delighted to announce the launch of a new essay competition which will be open to any undergraduate law or combined law student from a university in England and Wales. The essay competition has been designed to give undergraduate law students with

Interview with Professor David Hodson

The Life and Career of Professor David Hodson OBE KC(Hons) MCIArb, Solicitor, Mediator, Arbitrator, Australian Solicitor and DDJ David, what was your background? It was modest. My father won a scholarship to a grammar school in Southampton but like so many, the war interfered with his education and he

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