A week in family law: three important cases, and more

Family Law|Industry News|May 1st 2015

The family law news this week was dominated by three important cases.

The first of these was the decision in Re E-R (A Child), in which the court had to deal with the distressing issue of with whom a child should live after her mother, who was terminally ill with cancer, died. As I said here yesterday, the mother and child were living with friends and made it clear that she wanted them to continue to look after the child. Proceeding under the belief that there was a presumption in favour of a natural parent, the court initially made a child arrangements order in favour of the father, despite the fact that he had had little to do with the child for some time. The friends appealed against the order, and their appeal was allowed by the Court of Appeal, which said that there was no presumption in favour of a natural parent. Sadly, the mother passed away shortly before the Court of Appeal heard the case.

People planning to retire this year who have previously been divorced will be taking a hit of £2,100 per year on average in their expected retirement income, according to a study by Prudential. The study found that for divorcees the average expected retirement income is £15,700, compared with £17,800 for those who have not been through a marriage breakdown. It also found that one in five divorcees will retire with outstanding debts, averaging £22,100, whilst those who have never divorced will carry average debts of £21,700 into retirement. Divorce could also be pushing more retirees into poverty, as 19 per cent of those who have split from a partner end up on an income below £9,500, the Joseph Rowntree Foundation minimum income standard for a single pensioner, compared with 14 per cent of those who have never divorced. All of which goes to show that you should obtain the very best financial and legal advice when going through divorce.

The second case was Bromfield v Bromfield, a decision by the Privy Council, allowing an appeal by a wife against the refusal by the Jamaican Court of Appeal of her appeal against a financial remedies decision of the Jamaican Supreme Court. The President of the Jamaican Court of Appeal had held that a party who had remarried ought not to be expected to continue to maintain the other party of the dissolved marriage indefinitely. However, Lord Wilson in the Privy Council held that this was not an accurate statement of the law. The accurate statement is that any legal obligation of the husband to provide support for another person is one of the matters, but no more than one of the matters, which the court is required to consider.

Researchers at the School of Law and Politics at Cardiff University have published a report which recommends greater transparency in the Court of Protection, including a rule change to permit the media to attend important welfare hearings, such as serious medical treatment cases. The researchers believe that greater transparency would enhance public understanding of the court’s work and promote public confidence in the court. Personally, I have serious doubts as to whether any such initiative is likely to achieve those aims.

According to research by the pro-marriage ‘think tank’ the Marriage Foundation, over the last thirty-five years up to 1.8 million more children have been born into families that are breaking down as a result of the trend away from marriage. They say that since 1980 the proportion of children born to married couples has fallen from 88 per cent to 53 per cent, and that over the same period family breakdown has increased by 44 per cent in England and Wales. I’m not sure that their interpretation of those figures is entirely correct, but we’ll leave it at that.

Finally, the third important case was Curran v Collins, in which a former cohabitant failed in her appeal against a decision that she did not have an interest in the property in which she lived with her former partner. This was despite the fact that she and her partner had been in a relationship from about 1977 to 2010. Whilst I’m sure the decision of the Court of Appeal was correct in law, whether it was fair is another matter. The only way we are going to get fair outcomes in such cases is if we have a proper system of property rights for cohabitees.

Have a good May Day bank holiday weekend.

Image by Christian Scholz via Flickr

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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