Talking Family Law - The Resolution Podcast

• Happy 50th Birthday to the Inheritance Act!

  The Inheritance (Provision for Family and Dependants) Act 1975 received royal assent on the 12th November 1975. We celebrate its 50th birthday with Emily Roskilly (Roskilly & Co) and Alexander Learmonth KC (New Square Chambers).Everyone needs a broad hinterland behind their specialist practice. Therefore, it is no good being a family practitioner and not knowing your way around the Inheritance Act, because at some point we will be acting for a family where one of the litigants dies. This podcast will tell you all you need to know!Alex tells us who can be in the category of claimants in s1 of the 1975 Act, and the Court’s powers in s2 which are very similar to the Court’s powers on divorce although there are no powers to make orders in respect of pensions. Alex refers us to the Law Commission report ‘Second Report on Family Property: Family Provision on Death" (Law Com No 61)’ which indicates that the Act was intended to make sure spouses were treated the same on death as they would have been on divorce.Emily tells us that the focus of the test for an award in respect of spouse or cohabitee is the statutory test of what is a reasonable financial provision. For a spouse, s1(2)(a) provides that this means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance. For civil partner claims the same applies. For cohabitees and others such as adult children, s1(2)(aa) and s1(2)(b) provide that reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his or her maintenance.These claims can be brought in the County Court, or in the High Court either in the Family Division or the Business and Property Courts. There remains an anomaly that they cannot be issued in the Family Court, although the Family Division may assign them to an FRC Judge. The effect of having a choice of Court means that you need to think about which Court is likely to lead to a better outcome for your client.Emily draws our attention to the relevant factors that the Court has to consider in s3. Both Alex and Emily agree that conduct is rarely relevant in these claims and it must be gross and obvious.Emily then goes on to tell us about the different provision for spouses or civil partners and cohabitants in these cases. Cohabitees need to have been living with the deceased for two years immediately preceding death and living together as though husband and wife or civil partners.Alex and Emily wrestle with whether prenups would be given weight and conclude that as a matter of principle they would be, with the same caveats that would be applied in the divorce court. We also discussed Cohabitation Agreements, and Emily noted that if it was a long term cohabiting relationship and there was a historic Cohabitation Agreement, although it would show intention or wishes, she could not see it being a closed door for the potential applicant.

  --------  

  34:12

  --------

  34:12
• Trusts and Divorce

  In this episode, Simon takes advantage of Anita’s absence to indulge his favourite topic: trusts and divorce.Simon is joined by three leading experts in the field:Emma Hargreaves  is a barrister at Serle Court chambers, specialising in contentious trust litigation.Abby Buckland is a partner in the family team at Kingsley Napley and was part of the team who were successful in an argument that a trust was a sham in Michael v Michael.Louise Woolrich is a partner at Carey Olsen in Jersey, specialising in trust litigation.We start by going back to basics and exploring what is a trust, and by getting to know the cast of characters who appear in any case involving trusts: the settlor, the trustee, the beneficiary and the protector. We answer the question “what is an offshore trust, and should we always be suspicious of them?”.We then travel through the various stages of a case involving trusts from disclosure to enforcement. We consider trusts as resources and nuptial settlements and discuss whether trustees should be joined to proceedings and, if they are, whether they should submit to the jurisdiction. We discuss how trustees can be involved in without prejudice negotiations and FDRs in order to try and bring about settlement. Finally, we look at how to get orders enforced, in England and offshore.We look at each aspect from the perspective of the beneficiary spouse, the non-beneficiary spouse and the trustee. Practical tips from our speakers at every stage, whoever you are advising.Abby refers to a number of key English law cases on nuptial settlements and sham:Ben Hashem [2008] EWHC 2380Brooks v Brooks [1996]Snook v. London & West Riding Investments Ltd [1967] 2 QB 786Thomas v Thomas [1995] 2 FLR 668Michael v Michael (No 1) [2024] EWFC 463Louise refers to key offshore decisions:Disclosure of trust informationArticle 29 of the Trusts (Jersey) Law 1984Re Rabaiotti 2000 JLR 173Re H Trust 2006 JLR 280Submission to the jurisdictionRe H Trust 2006 JLR 280In the Matter of the Poon Family Trust [2011] JRC 167, [2014] JRC 254A and [2015] JCA 109EnforcementArticle 9 of the Trusts (Jersey) Law – the “firewall provision”In the Matter of the X Trust 2002 JLR 377In the Matter of the IMK Family Trust 2008 JLR 250 and 2008 JLR 430In the Matter of the PQ Employer Financed Retirement Benefit Plan [2019] GRC 013Emma refers to the following cases and legislative provisions:Prest v Petrodel Resources LtdPugachevs53 Law of Property Act 1925s423 Insolvency Act 1986

  --------  

  1:02:08

  --------

  1:02:08
• Covert Recordings and Tracking Devices

  To start our season with a bang, we are joined by Natasha Watson, Head of Law in Brighton & Hove City Council, and Darren Howe KC, 1 Crown Office Row Brighton, to discuss covert recordings and tracking devices.   Natasha was a member of the Family Justice Working Group who developed the Family Justice Council guidance into covert recording: https://www.judiciary.uk/related-offices-and-bodies/advisory-bodies/family-justice-council/resources-and-guidance/covert-recordings-in-family-law-proceedings-concerning-children/.  Note, Natasha joined us in her personal capacity today and was not speaking on behalf of the Family Justice Council. At the outset, Natasha reminds us of the words of then Mr Justice Jackson as long ago as 2016 about recordings in M v F (Covert Recording of Children) [2016] EWFC 29 https://www.bailii.org/ew/cases/EWFC/HCJ/2016/29.htmlIt is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge. Advances in technology empower anyone with a mobile phone or a tablet to make recordings that would be the envy of yesterday’s spies. This judgment describes the serious consequences that have arisen for one family after a parent covertly recorded a child in this way.Covert recordings are a form of hearsay evidence, which is why the evidence is not automatically admissible.  Natasha and Darren wrestle with where the balance will fall when the Court is considering the abuse of privacy and potentially abusive nature of the recordings, set against the fact that this form of evidence can be determinative of particular fact.  They advise that you need to ask yourself:whether the recording is relevant to one of the disputed issues in the case?is the recording reliable or could it have been modified?what is proportionate to be admitted as evidence.They caution us to consider the context of the recording and the completeness of the recording, when considering what the recording prove. Natasha draws our attention to Appendix 3 of the guidance which provides a useful summary of the Court’s approach. In respect of recordings of children, the issue is about whether interviews by an adult (well-meaning or not) that has an influence on what the child says.  The result is that the Court cannot accept the reliability of what was said.  We discuss how the recording has often already been taken before lawyers are instructed, which results in the client providing a recording that they think proves their case, but you take the view may in fact have a detrimental impact on their case.  Darren reminds us all of our duties of full and frank disclosure, and specifically the guidance from the Bar Council on ‘Disclosure of Unhelpful Material in Family Proceedings (Children)’ https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/disclosure-of-unhelpful-material-1-1.pdf Darren draws our attention to the judgment of HHJ Middleton-Roy in Re TQC, (Domestic Abuse: Findings) [2024] EWFC 279 https://www.bailii.org/ew/cases/EWFC/OJ/2024/279.html As technology has advanced, so has the ease by which tracking devices can be installed on mobile devices. The evidence of both parties in this case suggests that both parties consented to an app being downloaded to their respective devices so that they could monitor the movements of the other party. The evidence in this case leads the Court to the conclusion, however, that the father used the tracking app on the mother's mobile device as part of a pattern of behaviour designed to deprive the mother of the means needed for her independence. Darren reminds us that digital evidence is not as reliable as it used to be and the glitches, flaws, splices, chops. We conclude with a discussion about whether the time has come for all meetings with professionals to be recorded.

  --------  

  45:21

  --------

  45:21
• Standish: A New Dawn?

  We are joined by Rebecca Bailey-Harris (1 Hare Court) who was the first junior barrister for Mr Standish, and Sam Longworth (Stewarts) who was the lead partner for Mr Standish. Rebecca tells us that the five principles in the judgment are:There is a conceptual distinction between matrimonial and non-matrimonial property. In general terms, this distinction turns on the source of the assets. Non-matrimonial property is typically pre-marital property brought into the marriage by one of the parties or property acquired by one of the parties by external inheritance or gift. In contrast, matrimonial property is property that comprises the fruits of the marriage partnership or reflects the marriage partnership or is the product of the parties’ common endeavour [para 47];That the sharing principle only applies to matrimonial property and does not apply to non-matrimonial property [para 49];Sharing  matrimonial property should normally be on an equal basis. Although there can be justified departures from that, equal sharing is the appropriate and principled starting position [para 50];What starts as non-matrimonial property may become matrimonial property; “matrimonialisation”.  What is important is to consider how the parties have been dealing with the asset and whether this shows that, over time, they have been treating the asset as shared between them. That is, matrimonialisation rests on the parties, over time, treating the asset as shared.The final principle relates directly to matrimonialisation in the context of the facts of this case. In relation to a scheme designed to save tax, under which one spouse transfers an asset to the other spouse, the parties’ dealings with the asset, irrespective of the time period involved, do not normally show that the asset is being treated as shared between them. Rather the intention is simply to save tax. Rebecca and Sam go on to talk about what might constitute dealing with the asset and whether this shows that, over time, they have been treating the asset as shared between them, and how intention is a component of that test.  They discuss that the Supreme Court specifically disapproved of  Moylan LJ saying  “the concept of matrimonialisation should be applied narrowly” in the Court of Appeal.  Therefore, although the Supreme Court says in terms matrimonialisation is neither narrow nor wide, many of us are likely to consider the test is wider than we previously understood it to be.  Rebecca and Sam wrestle with the question of whether there will be a difference in how matrimonial property that has always been matrimonial, as opposed to property that has been matrimonialised will be treated. We finish with some quick-fire questions about how to apply these principles to scenarios that crop up all the time:Inheritances – cash and property;A property purchased prior to marriage;Business acquired prior to purchase.

  --------  

  46:53

  --------

  46:53
• Bankruptcy: The Final Frontier

  This month we are joined Anna Lintner (Maitland Chambers) and Gareth Schofield (Clarke Willmott) to discuss the interconnection between bankruptcy and financial remedy cases.  For this episode, Anita is joined by guest host, Matthew Taylor (Stowe Family Law) who is a member of Resolution’s Pension, Tax and Financial Remedy Committee.  Matthew is an experienced podcaster as one of the presenters of Stowe Talks https://www.stowefamilylaw.co.uk/stowe-talks/ We have called this episode ‘The Final Frontier’ because, for most of our practice, we do not need to know about bankruptcy. Then suddenly you get a case where one of the parties is about to declare themselves bankrupt, or is already bankrupt, and suddenly you need to know all about this unexplored area. Gareth mentions that he was one of the authors of Debt and Insolvency on Family Breakdown; https://www.abebooks.co.uk/book-search/title/debt-insolvency-family-breakdown/author/wendy-boyce/ and refers us to some of the key cases where family law and insolvency law interact being:Ball v Jones [2008] 2 FLR 1969 - where the Trustees in Bankruptcy was unable to challenge a consent order which had allowed the non-bankrupt to retain a much greater share of the assets;Haines v Hill and Another [2007] EWCA Civ 1284 - which is a Court of Appeal authority about how family law and insolvency work where consent orders are in place;Whig v Whig [2007] EWHC 1856 and Paulin v Paulin [2009] EWCA civ – in respect of annulling a bankruptcy;and Paulin v Paulin [2009] EWCA civ 221 – annulment cases with family law context and the risks of taking on a trustee in bankruptcy.Anna tells us the important rule we must know about in bankruptcy is the pari-pasu rule, which means all unsecured creditors must be treated equally, which includes the bankrupt’s award in financial remedy proceedings. Anna tells us that the Trustee in Bankruptcy cannot compel the bankrupt to draw their pension so that maybe one asset that can be preserved (Horton v Henry [2016] EWCA Civ 989) We conclude with the importance of thinking about drafting and enforcement where there is a prospect of bankruptcy after the final financial remedy.

  --------  

  34:55

  --------

  34:55

More Business podcasts

Trending Business podcasts

About Talking Family Law - The Resolution Podcast

Talking Family Law - The Resolution Podcast: Podcasts in Family