A week in family law: civil partnerships, a job for the new President and a whistleblower

Family Law|Industry News | 29 Jun 2018 1

It’s been a busy week in family law. We’ve seen a financial claim 26 years after the divorce dismissed; a potential landmark decision at the Supreme Court about civil partnerships and the first of many tasks for the next President of the Family Division, Lord Justice McFarlane.

A financial remedy claim made by a husband twenty-six years after he was divorced has been dismissed.

In the case, the parties had separated in 1991, and the two children of the family remained with the husband. The parties reached an informal agreement between themselves regarding financial matters around the time of the divorce in 1992, but the agreement was never incorporated into a court order. The husband eventually made his claim in 2016.

The case was heard by Mr Justice Baker (more of whom in a moment), who held that the circumstances did not justify any order for financial provision for the husband, in view of the agreement and the continuing contribution that the wife had made in the years that followed. He said that in so far as the husband now had needs, they were not the consequence of the parties’ relationship, nor of his responsibilities to the children, but rather of the way he had chosen to run his life.

The next President of the Family Division, Lord Justice McFarlane, who takes over the role from Sir James Munby next month, is to canvass views on producing general guidance to help manage separated parents’ expectations about child contact, an idea he has mooted previously.

He told a conference of the fathers’ rights charity Families Need Fathers that he would be touring courts in England and Wales this autumn, during which he would seek the views of family court judges on the matter. He said that he would “readily take it forward” if the idea received widespread support. The guidance would include an indication for parents of what a court would regard a reasonable amount or pattern of contact to be, in cases where there is no safeguarding risk to the child.

One of the first cases that Lord Justice McFarlane will be hearing as President, and one that we will no doubt be hearing a lot more about in the coming months, involves “a novel, if not unique, set of circumstances”, as described by Mr Justice Holman.

In the case, Bruzas v Saxton, the parties were divorced in 2013. They agreed on a financial settlement, and in March 2014 this was put into a consent order.

In January 2018 the court was sent a number of documents from a “whistleblower”, who was employed as a paralegal in the firm of solicitors who had been acting on behalf of the husband. Copies of the documents were supplied to both parties and the wife then sought to have the consent order set aside on the grounds of “perjury and perverting the course of justice committed by [the husband] and his legal team.”

The case raises serious issues as to whether the documents are protected by legal professional privilege. In view of these issues, Mr Justice Holman decided that the case should be considered at the highest possible level, namely that of the President of the Family Division. He, therefore, directed that it should be listed for hearing by the President.

Rebecca Steinfeld and Charles Keidan, who wish to open up civil partnerships to opposite-sex couples, have won their appeal at the Supreme Court. In a decision that could have far-reaching implications, the court unanimously ruled that the law discriminates against opposite-sex couples, and made a declaration that it was incompatible with the European Convention on Human Rights. It is now up to the government to decide what, if anything, to do about the incompatibility.

And finally, there has been a raft of appointments to the senior judiciary. Lady Justice Arden DBE and Lord Justice Kitchin will become Supreme Court Justices on 1 October 2018, followed by Lord Justice Sales on 11 January 2019.

These appointments follow the retirement of Lord Mance, former Deputy President of the Court, in June 2018. Lord Hughes and Lord Sumption are due to retire in August and December 2018 respectively.

Meanwhile, one tier down, Mrs Justice Nicola Davies, Mrs Justice Rose and Mrs Justice Simler are to be appointed as Lady Justices of Appeal, and Mr Justice Baker, Mr Justice Green, Mr Justice Haddon-Cave and Mr Justice Males are to be appointed as Lord Justices of Appeal.

These appointments are to be made in light of the appointment of Sir Andrew McFarlane as the President of the Family Division, forthcoming appointments to the Supreme Court and retirements from the Court of Appeal

Have a good weekend.

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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    1. Julian says:

      “The next President of the Family Division, Lord Justice McFarlane, who takes over the role from Sir James Munby next month, is to canvass views on producing general guidance to help manage separated parents’ expectations about child contact, an idea he has mooted previously.”

      But will he be honest in this? So for example:

      “If you are a Father, don’t expect your contact rights to be upheld unless you have ten’s of thousands of pounds to risk on a process in which you are largely not listened to by the professionals involved? ”

      “Anticipate that the largely female body of ‘professionals’ in the Family Law business to be riddled with bias and prejudice and for your own presentation of facts and events to be ignored, to the preference of whatever the alienating, abusing Mother has to say ”

      “Don’t expect your lawyer to put herself out for you. She is more concerned about the way the judge will perceive her than your case. Besides you are male so who is going to listen or care about you anyway ”

      “Despite all of this we will hound you to jail for your money. We will put you into years if not decades of penury in pursuit of this. This is the only aspect of a Father’s relationship with his children the Family Law system cares about.”

      etc etc.

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