Financial Remedies Journal - 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.
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
Andrew Hogan
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.
Gwynfor EvansJust 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.
Charlotte JohnChair’s Column (Winter 2023)
Once again, I am very pleased to commend to you another issue of the <em>Financial Remedies Journal</em> packed with compelling and engaging material.
HHJ Edward Hess | Chair of the Editorial BoardTech Corner: NeedsMet
Whether we like it or not, the age of ‘do-it-yourself’ divorce is here.
Alex WoolleyDOWNLOAD 2023 ISSUE 3 – Winter 2023 (PDF)
2023 Issue 3 (Winter 2023) is now available to download and read as a PDF. Click to download.
The Thwaite Jurisdiction – A Stay of Execution?
The very existence of the <em>Thwaite</em> jurisdiction is controversial. Its origins are found in <em>Thwaite v Thwaite</em> [1981] 2 FLR 280.
Philip TaitMoney 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 dry tax
Simon DentonAS 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 FPR 9.15(4). The court <em>must</em> direct such a hearing unless: (1) the first appointment, or part of it, has been treated as an FDR appointment which has been effective; or
Nicholas Allen KCFinancial 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.The purpose of the project is to determine whether there are problems with the current law that require reform,
Professor Nick HopkinsThe Financial Remedies Court: A Year in Review
Peel J argues that the FRC is generally in very good order and a flagship of the family law world, the only cloud being the ongoing struggle with the contested portal.
Hon. Mr Justice PeelThe Summary of the Summaries (Winter 2023)
Summaries beginning with <em>Cummings v Fawn</em> [2023] EWHC 830 (Fam) (Mostyn J): W’s appeal of a judgment, which had seen her held to a <em>Xydhias</em> agreement, was allowed on the basis that the first instance judge had not properly considered how W’s housing needs and debts could
Henry PritchardHasan – The Barder Conundrum – A Final Word (We Promise)
The Supreme Court's judgment in <em>Hasan</em> 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 publication in July 2023.
Joe RainerThe Jurisdiction of the Family Court to Determine Property Disputes in Favour of Third Parties
The Family Court does not have TLATA jurisdiction. This creates a particular problem for proceedings in a Family Court which is not also a county court, most obviously the CFC in London. This article, although not limited to proceedings in the CFC, includes some specific discussion about how the pr
Rhys Taylor | Vice Chair of the Editorial Board & Journal EditorTo 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 solicit
Olivia LongriggRemarriage: 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.
Claire HowardThe Pensions Ombudsman for Family Lawyers
The Pensions Ombudsman 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 in connection with any act or omission of the trustees or managers of an occupat
Rhys Taylor | Vice Chair of the Editorial Board & Journal EditorAre We Clear? Transparency and the TIG Financial Remedies Sub-Group Report
The conclusions of the Financial Remedies Sub-Group of the Transparency Implementation Group were published in April 2023. Established by the President of Family Division and led by HHJ Stuart Farquhar, a group of 13 – judges, lawyers, a legal blogger and a journalist, based around the countr
Emily WardBook Review: Dictionary of TLATA and Inheritance Act Claims
A review of the <em>Dictionary of TLATA and Inheritance Act Claims</em>, a valuable source of knowledge, which helps lawyers understand the complex connections between family law and the laws related to trusts and property.
Byron JamesFinancial Remedies Case Round-Up (Mid-April to mid-September 2023)
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 nothing for a while. Nevertheless, a sudden spate was not expected of proprietary estoppel, which has been the do
Polly Morgan | Case EditorSpousal Maintenance By Formula: The Canadian Experience
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.
Michael AllumChild 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?
Stuart McGheeThe Financial Remedies Journal 2024 Undergraduate Essay Competition – Watch this Space!
The editorial board announces 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.
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, to
Karen BarhamInterview with Professor David Hodson
Professor David Hodson, interviewed by Rhys Taylor, the Vice Chair of the Editorial Board.
Rhys Taylor | Vice Chair of the Editorial Board & Journal Editor‘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 open at the valedictory of the hon
Samantha Hillas KC
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Of Dogs and Divorce
Of dogs and divorce: why treating pets as chattels is an anachronism.
This is Ernest, our beloved English bull terrier. According to English law he has the same status as the chaise longue upon which he is performing his Kate Winslet impersonation. How can this be right? How can he
Pre-Nuptial Agreements: an ‘Oven-Ready’ Solution to a Pressing Problem? A House of Lords Debate
Late last month, Baroness Deech brought a motion in the House of Lords, ‘That this House takes note of the law relating to prenuptial agreements’.
The debate came against the backdrop of Baroness Deech having (of course) long pursued financial remedies reform through her Divorce (Financial Provision) Bill. She has
Stamp Duty Land Tax and Divorce
This is sometimes the forgotten tax on divorce. Maybe this is fair enough as there is a pretty clear exemption in tax law that states that stamp duty land tax (SDLT) will not apply to transfers pursuant to divorce.
However, the last few years have seen the introduction of two