The Family Law team at Anthony Gold have been shortlisted for the Family Law Regional Firm of the year award (London).
The awards recognises excellence in the legal community and we are thrilled to have made the shortlist.
The awards ceremony will be on 29 November in London.
I’ve had enough and want to leave him. I’ve been living in London for the past 13 months on a spousal visa and have no income of my own. What can I do?
Statements like the above are not unusual for a family law solicitor. We will regularly come across cases where a spouse, typically the wife, is subject to a spousal visa, i.e. their immigration status in the UK is entirely dependent upon their spouse’s right to remain in the UK or citizenship.
For the purposes of this article and for ease we shall refer to the victim of the domestic abuse and the applicant as being the wife.
What can a family solicitor do to assist?
Immigration status
The dependent wife should be advised to obtain urgent immigration advice. This is a must if the parties are, or quite likely in the foreseeable future, not living together as husband and wife due to the domestic abuse.
Immigration rules apply to individuals who have leave to temporarily remain as a spouse in the UK or as the partner of either a British citizen or someone who has some form of settled status in the UK. Such a person can be granted indefinite leave to remain (ILR) if their relationship has genuinely broken down because of domestic violence during their probationary period of leave.
There is a need for evidence to demonstrate that domestic abuse took place which would assist in satisfying the relevant Home Office criteria to succeed in such an application.
Violence
If the wife’s life is at risk she should call the police immediately on 999.
If the wife has suffered domestic abuse and / or is at imminent risk of the same, the wife can obtain urgent protective orders in the form of an injunction and if appropriate, protective orders for any children of the family.
There are two types of injunction orders: a non-molestation and occupation order. An application can be made on an urgent basis if the circumstances justify the relevant criteria.
Urgent application
An application can be made, and an order obtained, without notice to the husband. This is done when there is a real risk that if the husband was aware that the wife was applying to the court for protection this would result in the wife being at further risk of harm.
If an application is made without notice the order will usually last for a short specified time. The court is likely to list a return date hearing requesting that the husband attend court. The judge will then consider whether the order should be discharged, extended, for how long and if there should be a further hearing if the husband disputes the allegations being made. Any supporting evidence of the abuse should be submitted. This could include a letter from the wife’s GP, a crime reference number or photographs of any injuries sustained.
If you do obtain an order without notice to the husband, the husband will not be bound by the terms of the same until he has been personally served with the order. Once the husband is served with the court order a copy should also be lodged with your local police station.
A non-molestation order will protect the wife and any relevant children. The order will prohibit the husband from harassing, pestering, intimidating, threatening or using actual violence against the wife or a child. The order can also forbid contact by telephone, email, social media or in person. It can also prohibit the husband instructing anyone else from doing so.
The other form of protection is an occupation order. An occupation order will result in either:
a) Enforcing the wife’s entitlement to remain in her home as against her husband.
b) Allowing the wife to return and remain in her home or part of it.
c) Regulate how the home is occupied either by one of the parties or both. This could apply to say when one can enter the kitchen, living room or the main bedroom.
d) It can also prohibit, suspend or restrict the husband’s right to occupy the home. He might be ordered to leave the home immediately upon being served with the order or within a specified time. He can also be excluded from a defined area in which the home is situated.
The factors the court will take into account when deciding whether to make an occupation order are as follows:
a) The housing needs and housing resources of the parties (and children);
b) The financial resources of each of the parties;
c) The effect of any order, or failure to make an order, on the health, safety or well-being of the parties (and children);
d) The conduct of the parties.
When the court has an application for an occupation order before it, the court will also consider the “balance of harm” test. This means that if the court considers that the wife or any child is likely to suffer significant harm attributable to the conduct of the husband if an occupation order is not granted, then the court shall make such an order unless it appears to the court that:
a) The husband or any child is likely to suffer significant harm if the order is made;
b) The harm likely to be suffered by the husband or child is as great as or greater than the harm attributable to the conduct of the husband which is likely to be suffered by the wife or child if the order is not made.
If an occupation order is made, the court can order the husband to continue to pay the rent, mortgage, utility bills and council tax as and when they become due for a specified period of time. A power of arrest can be attached to the occupation order.
Interim maintenance
Taking on board any immigration advice given, the wife can consider petitioning for judicial separation or divorce. The original marriage certificate, and certified translation if appropriate, will be required. If it is not possible to locate the original marriage certificate because of the urgency in issuing proceedings, permission can be requested from the court to issue without lodging the original certificate.
Upon the petition being issued, the wife can make an urgent application for interim maintenance to ensure the she is in receipt of sufficient funds on a monthly basis to meet the monthly expenses for herself and for any dependent children. The interim maintenance will usually be paid until the conclusion of the finance proceedings which will take place within either the divorce or judicial separation proceedings.
Legal services fees order
If the wife does not have the financial resources to obtain legal advice because of the financial eligibility criteria and cutbacks to legal aid, a legal services funding order (LSFO) can be applied for. This is an order made against her husband to fund her legal fees should he have the financial resources to do so amongst other factors. Although legal aid is still available in domestic violence cases, eligibility will depend on the financial status of the one applying for legal aid. Furthermore, if legal aid is granted for injunction proceedings, it might not be extended to cover an application to deal with the financial aspects within judicial separation or divorce proceedings.
A LSFO can be obtained in matrimonial proceedings which involve an application for financial relief. The court may make an order or orders requiring a party to the marriage to pay to the other an amount to allow the applicant to obtain legal services for the purposes of the proceedings. The applicant has the right to instruct a solicitor of choice.
However, the court must not make an order unless it is satisfied that without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of it. The court must also be satisfied that the applicant is not reasonably able to secure a loan to pay for the services. Furthermore, that she is unlikely to be able to obtain the services by granting a charge over any assets likely to be recovered in the proceedings.
Disclaimer: Although it is intended that the above summarises some parts of the law it is not a precise statement of the law. The above article does not constitute legal advice and no liability is accepted in respect of any loss caused by reliance on the same.
The President of the Family Court, Sir James Munby, hit the headlines last week with his devastating judgment in the matter of X (A Child) (No 3) [2017] EWHC 2036 (Fam) , a judgment that was covered on TV, radio, newspapers and social media with the concern of a then 16 year old girl who was a very high security risk and the complete lack of availability of secure, appropriate accommodation. His judgment is powerful and reminiscent of some of the best of Charles Dickens’ writing.
It appears that the girl, only known as X, only had one goal and that was to kill herself. A case that the President found “profoundly disturbing” with the evidence presented and a case which had come before the courts earlier in which it was made clear that it was imperative to find an appropriate placement for X.
The judge went through the relevant duties of the state to provide appropriate accommodation. The judge recorded a pitiful ‘report of incidences’ that in less than the last six months in which X had to be restrained on 117 occasions and that there had been 102 significant acts of self-harm. Set out below are the key passages of the judgment, edited in part:-
32 .I have been greatly assisted by two officials from NHS England, the Deputy Head of Mental Health Commissioning for the North West Hub and the Secure and Specialised Case Manager for the North of England Specialised Team, North West Hub, who have attended the hearing while at the same time continuing their frantic efforts to find an appropriate placement for X… I emphasise that neither of these committed public servants is to be criticised for the present state of affairs. They can only do their best, as they are doing, having regard to the resources made available to them. They are not responsible for the provision of those resources – that is the responsibility of others.
37. What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.
38. X is, amongst all her woes, a young person convicted in the Youth Court and a prisoner of the State. As long ago as 1910, a Home Secretary, speaking in the House of Commons, asserted that “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” In modern times the principle has expanded, so that, as is often said, “One of the measures of a civilised society is how well it looks after the most vulnerable members of its society.” If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.
39. If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.
40. My judicial duty, as with every judge in this country, is “to do right to all manner of people after the laws and usages of this realm.” There are occasions, and this is one, where doing “right” includes speaking truth to power. The entrance to the Old Bailey, the Central Criminal Court, admonishes those who enter to “Defend the Children of the Poor.” Is less required of the Family Court or of the Family Division of the High Court? I think not.
50. I direct that copies of this judgment be sent immediately to the Chief Executive Officer of NHS England, to the Secretary of State for the Home Department, to the Secretary of State for Health, to the Secretary of State for Education and to the Secretary of State for Justice.
The effect that his judgment has been most profound. It has moved emotions but also moved people into action. It is reminiscent of Dickens’ outcry against the establishment at the death of Jo the crossing sweeper in Bleak House. Jo “knows nothink ”. He has never been looked after by the authorities, church or state and as a young boy, he lays dying of an unnamed but eminently curable disease if medical care had only reached him earlier. The hero of the book is with Jo as the light passes from his sad and tragic life. In doing so, the hero begins to teach Jo the lord’s prayer.
“Our Father.”
“Our Father! Yes, that’s wery good, sir.”
“Which art in heaven.”
“Art in heaven–is the light a-comin, sir?”
“It is close at hand. Hallowed by thy name!”
“Hallowed be–thy–“
“The light is come upon the dark benighted way. Dead!”
“Dead, your Majesty. Dead, my lords and gentlemen. Dead, right
reverends and wrong reverends of every order. Dead, men and women, born with heavenly compassion in your hearts. And dying thus
around us every day.”
The outcry is similar. The powerful images evoked by the prose used frequently by the President in his judgments. The President never becomes party political but he does not shrink from raising issues that concern society as a whole.
Jo says of the hero, the only man that ever paid him any attention, “He wos very good to me he wos” as the President is to all children he is concerned with in his court. Munby P is the modern-day Dickens. He is a social writer. Bleak House is a novel very much concerned with the law and its failure to help people.
The President also gave the leading judgment for the Court of Appeal in the Owens case, [2017] EWCA Civ 182 where the first instance judge had refused to grant Mrs Owens a divorce from her “desperately unhappy” 39 year marriage. He commented that “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say that it should be.” The passages from paragraphs 83 through to 98 are not only full of historical and literary references, but they are full of humour and insight. The judge went on to ask Parliament to consider introducing no fault divorce.
At the FLBA conference at the end of 2016, the president was keen to set out how the government had been completely silent in many responses warning them of the imminent crisis in the family justice system.
His numerous judgments highlighting the harsh outcomes of those forced to go to the family courts without the benefit of legal aid are both relevant and powerful. The president described the increase in court fees for divorce as “a poll tax on wheels” and disproportionately affecting women.
So often the President’s words appear as if they could have been written by Dickens. In the matter of M (a child) July 2015, he began his judgment: “Once again I am faced with the plight of a vulnerable mother unable to pay the cost of the family proceedings in which it is essential that she is enabled to participate properly if her, and her child M’s, Articles 6 and 8 rights are not to be breached.
In the matter of D (a child) (No.2) [2015] EWF C2, he wrote: “A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much as the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law. It goes back over 400 centuries to the earliest years in the 17th century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind”. The President viewed the family justice system as “neither compassionate nor even humane”.
In the earlier decision in the matter of D (a child) [2014] EWFC 39 in October 2014, Munby P wrote: “what I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation – to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 [of the European Convention on Human Rights]; it would be a denial of justice. The child is also entitled to a fair trial”. The words could have been written by Charles Dickens himself.
Indeed Bleak House of course focuses on the long running Chancery case of Jarndyce and Jarndyce of which Dickens wrote –
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Sir James Munby, who will step down next year when he turns 70, will be sorely missed. Perhaps he can start that novel of our times he has always been itching to write.
Over the years the term non-marriage (or nonexistent marriage) has been adopted to refer to marriages that are so far removed from compliance with the Marriage Act 1949, that the court deems the marriage or ceremony that had taken place to be of no effect under English law.
This term is often applied to religious-only marriages, say a nikah, that may have taken place in say, a home, or a hotel or mosque and have no legal effect under English law whatsoever, namely, they are not recognised at all and one cannot make a claim for financial relief under matrimonial legislation.
However, circumstances do exist where the parties to a marriage have only had a religious marriage which they understood to have been recognised by English law. Careful consideration should be given to the actual ceremony that had taken place to see if it could be accepted as being a valid, or defective marriage which can be ended by annulment (void or voidable marriage) if certain formalities can be shown.
In order to persuade a court that a ceremony should be recognised as either a valid or defective marriage details should be given of the place of the ceremony (i.e. did it take place in a registered religious building or on approved premises), and the presence of an authorised person.
The case of Hudson v Leigh in 2009 [2 FLR 603] is a very helpful case. The judge stated that questionable ceremonies, which will include ceremonies involving an Islamic marriage, should be considered on a case by case basis.
Factors that should be considered are:
(a) whether the ceremony or event set out or purported to be a lawful marriage;
(b) whether it bore all or enough of the hallmarks of marriage;
(c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and
(d) the reasonable perceptions, understandings and beliefs of those in attendance
Please feel free to contact us if you have had a religious marriage only, and wish to ascertain its legal status.
Below, are a couple of cases.
The first is in relation to a wife, who was a party to a nikah, seeking permission to issue a petition for nullity without a marriage certificate. The other, concerns a non-marriage whereby although a mother was seeking a decree of nullity her nullity petition was dismissed.
G v M in 2011 EWHC 2651
In this case, the parties had undergone an Islamic ceremony of marriage in the husband’s flat in London. A marriage certificate was never issued to either party. The applicant was seeking permission to file her petition for nullity in the absence of a marriage certificate.
The court accepted the evidence of the wife that she believed that the ceremony gave rise to a valid Islamic marriage and that such a marriage would be accepted as a valid marriage for the purposes of the laws of England & Wales. Furthermore, that she believed that her husband, the respondent, also shared this belief. As part of the ceremony that took place, both parties repeated a standard form of wording, as one would do in a church wedding confirming that they were taking the other. The applicant confirmed that she considered the formalities that took place on that day were sufficient “to be married for all purposes”. She further stated that the husband and the other people present including the imam “all felt the same”.
The judge held that there was sufficient evidence to establish that both parties believed that they were contracting an Islamic marriage and such a marriage would be recognised in English law. Furthermore, that the Imam believed he was conducting a valid Islamic marriage and that the parties recognised that marriage was sufficient for the judge to grant the wife permission to present her petition for nullity without a marriage certificate.
The permission would then enable the wife to consider and be advised as to whether to make an application for financial relief.
El Gamal v Al Maktoum in 2011, EWHC B27 (Fam)
In contrast, in this case a decision was made that the ceremony that took place at the father’s flat in Knightsbridge did not give rise to either a valid or defective marriage which could come to an end by a petition being issued; namely it was a non-marriage.
This case involved an application by the mother, Nivin el Gamal against His Royal Highness Sheikh Ahmed Bin Saeed al-Maktoum, a senior member of the Royal Family in Dubai. The parties had a son who was born in April 2008.
The mother had stated that the parties had an Islamic ceremony of marriage on 11th January 2007 in the father’s flat. She claimed this ceremony created a marriage albeit a void one. If accepted, she could seek a decree of nullity.
The mother stated that an Imam was present to conduct the ceremony and there were two witnesses. She said that she had received the sum of £30,000 representing her mahr and a diamond encrusted watch instead of a wedding ring. The father denied that such a ceremony took place. The onus was on the mother to establish that the wedding ceremony had taken place.
On the issue of credibility, the judge reluctantly took into account evidence on the mother’s mental health. Unhelpfully, and with little notice, the father did not attend court stating that he had to attend a Summit in Riyadh. The father was not present to give evidence to support his case or to challenge that of the mother’s.
If the father had attended and given a good account of himself and been cross examined, the judge said that he would have probably had concluded the underlying credibility issue in his favour. This could have resulted in a decision that the mother had falsely invented the ceremony, presumably for financial gain, or that as “a result of her unusual personality traits and emotional fragility, had somehow incorporated it into some sort of disassociated dream world where, for her, wishes come to be reality”.
The judge first concluded that there was an Islamic wedding ceremony on 11th January 2007. The next issue to consider was what effect did this have under English law, if any at all, i.e. was it a void marriage or no marriage at all.
The judge heard expert evidence that in most Muslim countries it is rare to find a customary marriage without it being recorded in writing. Furthermore, the judge said he would find it hard to accept that the wife would have expected this secret marriage to be recognised in Egypt. The mother’s Egyptian solicitor had also advised the mother against having this marriage in secret. The mother had lived in this country for 5 years and therefore the judge took the view that she should have been aware that certain formalities would have to be complied with. She had not provided any evidence to show what steps had taken to ascertain the formalities of marriage required in this country or in an Islamic country. The Judge concluded that her evidence of her belief that the ceremony was valid under Islamic law and English law was self-serving.
Having an imam, two witnesses and an intention for the marriage to be valid was not sufficient to show what the parties had done to comply with the Marriage Acts. In these circumstances, this was not a void marriage but a ‘non-marriage’, and accordingly the nullity petition was dismissed.
K v K in 2016 [EWHC 3380 (Fam)]
This involved a ceremony in London and a later one in Pakistan.
The parties, in this case, had initially undergone a religious ceremony of marriage in a mosque in London in 1999. The wife stated that she was unaware that the husband was married at the time. The husband said that she was aware. It was considered that the first marriage of the husband subsisted until 2015 when his first wife passed away. In any event, both parties agreed that the 1999 ceremony in a mosque in London was a non-marriage.
The wife stated that on 15th August 2003, she and the husband had spoken to an Imam in Pakistan by telephone. She claimed that during this telephone call, the formalities of an Islamic marriage were completed and that an Islamic marriage contract was drawn up at a later ceremony in Pakistan in a property owned by the husband. The wife stated that as part of this process the husband had confirmed that he was free to marry. The husband denied that there was such a ceremony in 2003.
The judge preferred the evidence of the wife and as a result was satisfied that a telephone conversation took place on 15th August 2003. At the time of this telephone conversation the parties were present in London, and an Imam and some future witnesses were in Pakistan. It was further accepted that arrangements were made for the nikah ceremony to take place.
The judge also accepted that the parties did attend a form of ceremony in Pakistan at in a property belonging to the husband. This ceremony purported the effect of a marriage and the formal process of an offer and acceptance took place. Following this, a nikah document was formally signed in front of witnesses. Furthermore, that the wife believed that the husband was divorced from his first wife and as a result and with effect from on or about 28th August, she was lawfully married to the husband.
The 2003 marriage was never registered with the authorities in Pakistan. The husband also failed to notify his first wife that he was going to contract a polygamous marriage, a requirement in Pakistan. Had these two formalities been complied with, there would have been a strong case for recognition of the 2003 ceremony as a valid marriage and the wife could have petitioned for divorce.
As a result of these two issues, the religious ceremony did not give rise to a valid civil marriage in Pakistan. The judge believed the wife’s evidence over the husband’s and accepted that the parties had intended and believed that the event in 2003 was a valid ceremony of marriage. This highly material factor resulted in the judge being completely satisfied that the wife was entitled to the decree of nullity which she sought and thus could apply for financial relief in the English courts.
David Emmerson featured in a podcast with Joanna Blakelock, KGW Family Law, discussing how to develop your practice as a mediator.
In particular, they discuss:
– Skills of a mediator, how you apply them and how you approach the training
– The involvement of experts in the mediation process
– Setting out the difference between legal information and legal advice to clients
– How to approach safeguarding matters
– How to explain mediation and other DR processes with clients in a first meeting
Please click here to listen to the podcast.
The law on the jurisdiction of divorce proceedings is well established within the EU. Put simply, subject of course to the usual criteria of residence and domicile, whoever commences divorce proceedings first in an EU member state normally has the conduct of the proceedings.
So, if divorce proceedings are commenced in Italy before England, the Italian Court will deal with the divorce.
This article looks at an anomaly that is faced by spouses married to an Italian citizen, who is divorced in Italy, but at the same time has property in England.
The anomaly is this, notwithstanding that the Italian courts have the conduct of the divorce process, they are reluctant to make orders transferring capital situated in England. Although the Italian courts might make orders regarding the income that is generated by a UK property, they rarely order that the property is sold.
This is a very different approach to the English courts who will order the sale of a European property.
So what does this mean in practical terms? If parties divorce in Italy and there is property in England, the parties will have to commence a separate action in England for an order for sale, unless of course, the parties agree to the sale by consent. This will involve a second set of proceedings and in most circumstances additional cost.
When dealing with applications for orders for sale, the English courts will treat the proceedings as a ‘standalone’ case and not a matrimonial dispute, referring back to the Italian divorce proceedings.
If the property is jointly owned the presumption is that on sale the net proceeds will be divided on an equal basis, although this presumption can be overturned in some cases. If the property is in the name of one spouse, then the court approach the dispute by reference to the House of Lords case of Stack v Dowden [2007] 2 AC 432 and subsequent case law.
The lack of certainty as to the outcome of such cases can lead to disputes and expense.
Until such time as the Italian divorce courts are prepared to make orders concerning the disposition of property in England, this problem will not go away.
You have been warned!
The keynote address was given by Mr Justice Keehan. Sir Michael chose as the subject of his address whether or not there should be publicity in financial remedy proceedings. An issue which has divided the Family High Court Bench.
His presentation was popular with the audience, the judge being not only entertaining but very thought-provoking too. Mr Justice Keehan outlined the advantages and disadvantages of publicity in financial remedy proceedings before going on to discuss the law, the procedural rules and recent cases on the subject.
He told the story of two very prominent QCs who heard from the listing office that their clients’ financial remedy application was to be heard by a particular High Court Judge. Each, for different reason,s explained to their clients the necessity of settlement pre-trial rather than risk their case appearing in the newspapers. The case unsurprisingly settled.
Balanced against this is the need for the public to be satisfied that justice is not only done, but is seen to be done. Publicity can provide valuable education for lawyers and the public, so that they can make informed decisions to fit their own circumstances. But surely no individual wants details of their marriage to be splashed all over the Daily Mail.
Mr Justice Keehan drew a distinction between cases heard in the Court of Appeal and at first instance. The position with regards to the Court of Appeal is well established. The situation with regards to appeals was considered in the case of Norman v Norman. Whereas first instance decisions may well have been heard in private, it was settled law that proceedings in the Court of Appeal are governed by the Civil Procedure Rules which require proceedings to be heard in public and therefore reportable unless restrictions apply.
The High Court Family Bench is divided, with judges offering opposing views – respectfully, of course. In one corner is Holman J, and in the other is Mostyn J. In the case of DL v SL, Mostyn J considered the principle of open justice and the hearing of financial remedy cases in public. He concluded that unless there are exceptions, these cases should be heard in private.
However, Holman J, in the case of Luckwell v Limata, took a different view, his approach is as follows: “In my view, Rule 27.10 does not contain any presumption that financial remedy proceedings should be heard in private – it is no more than a starting point – and a question of whether a given case should or should not be is entirely in the discretion of the court.”
Other cases were cited by Mr Justice Keehan, which space here does not allow for. Suffice to say we all await the Court of Appeal’s consideration of these issues with interest.
Mr Justice Keehan was of the view that the overwhelming balance of opinion in the Family Court is that these proceedings should be heard in private. Only in particular circumstances should anonymised judgments be allowed, for example, where there was disgraceful conduct by one party. Mr Justice Keehan recognised the considerable advantages of arbitration and private FDRs in resolving financial matters where there were no such issues regarding publicity. There was a clear advantage to such out of court resolution.
In a court judgment Mrs Brexit Owens was told by His Honour Judge Tolson QC that she could not trigger her divorce from her husband E.U Owens. Brexit Owens had planned to trigger her divorce on the 29th of March.
The position now is uncertain. The decision leaves Brexit Owens locked forever in what for her is a loveless marriage. However, the judge did not accept that her grounds for triggering her divorce were as unreasonable as she maintained. Brexit had claimed that E.U had been unreasonable, but the judge held that there was no factual evidence to support her claims although he accepted that her feelings were genuine.
The judge after hearing detailed submissions from Mr Philip Marshall QC, an unlikely compassionate supporter of Brexit Owens but nonetheless honouring the CAB rank principle that the marriage to E.U. was hopeless and without any prospects of reconciliation. Mrs Brexit Owens had complained that E.U had spent all her money and he had nothing to show for it. Further, that E.U had restricted her rights to behave in any way she sought fit, which she claimed were derived from the Magna Carter. Finally, that he had allowed far too many other people into their relationship. However, HHJ Tolson rejected the divorce describing the evidential claims for divorce. The judge described the claims as “hopeless”, “anodyne”, “scrapping the barrel” and “lacking le roast boeuf”.
The judge therefore dismissed the divorce application and they all lived happily after.