Season 3

Listen to all episodes of the first series of Talking Family Law – the official Resolution podcast.

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S3 Episode 1: Busking with Mr Justice Mostyn

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Mr Justice Mostyn

Further information

We could not have been more excited to have the opportunity to speak to Mr Justice Mostyn before he retires at the end of the month.

We discuss Movers & Shakers – his highly successful podcast with five other Parkinson’s sufferers:

https://cureparkinsons.org.uk/2023/03/movers-shakers-six-familiar-faces-launch-podcast-about-living-with-parkinsons/

Plus his best case, and thoughts on transparency of course!

The Judge clarifies that Hildebrand documents are admissible if relevant, but the case of Immerman deals with professional conduct around such documents.

The Judge explains and justified the rates used for Duxbury, and invites Resolution to attend future meetings about the rates.

Finally, for all Resolution members you will be pleased to hear that the Judge completely supports the proposition that there should be no difference between the Court’s powers if the parties are married or not.

This episode gets better and better as the Judge goes on.

During the discussion the Judge mentions:

  • RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – this is the case Mostyn J discussed being most proud of.
  • Xanthopoulos v Rakshina [2022] EWFC 30 refers to the case of J v J [2014] EWHC 3654 (Fam)
  • Evans v Evans [1990] 1 WLR 575, [1990] FLR 319
  • James v Seymour [2023] EWHC 844 (Fam) (child support)

S3 Episode 2: The Trouble with Costs

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: HHJ Reardon and Laura Moys

Further information

We all agree that costs applications, and costs orders, are becoming more prevalent in Children Act as well as financial remedy proceedings.  Public policy certainly seems to favour the use of costs orders as a way of ensuring that litigation is proportionate and reasonable.
In this episode we are assisted by HHJ Reardon (who sits in East London Family Court and the CFC hearing both Children Act and Financial Remedy cases) and Laura Moys (barrister at 1 KBW) talk us through costs orders in respect of Children Act and Financial Remedy cases.
We discuss LSPO including:
·      HHJ Reardon reminds us (in the context of ever increasing interest rates) of the provision in Rubin V Rubin that:
viii) If a litigation loan is offered at a very high rate of interest it would be unlikely to be reasonable to expect the applicant to take it unless the respondent offered an undertaking to meet that interest, if the court later considered it just so to order.
·      What happens in second LSPO applications; and
·      LSPO in Children Act proceedings, including the need for equality of arms in accordance with BC v DE (Rev 1) [2016] EWHC 1806 (Fam) (21 July 2016).
We look at Costs orders in Children Act cases, and are reminded of the dicta in Re S (a Child), Re [2015] UKSC 20 (25 March 2015).  They discuss when a Court may order costs after a fact-finding hearings and refer to Re T (Children), Re [2012] UKSC 36 (25 July 2012).
Finally we discuss costs in Financial remedy proceedings, including:
·      the Court’s approach to making orders that cover legal costs in needs cases.  Laura refers us to Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184 (30 July 2021);
·      When we should be dealing with costs arguments; and
·      General guidance about Wwhat is and is not reasonable, in order to consider what sort of positions may result in costs orders;
·      We are reminded that the Court can make costs awards where a party has refused to negotiate; JB v DB [2020] EWHC 2301 (Fam) (23 July 2020);

S3 Episode 3: Prenups – Definitely Worth the Paper it is Written on

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Connie Atkinson and Nicholas Bennett

Further information

In this episode we are joined by Nicholas Bennett (29 Bedford Row), and Connie Atkinson (Kingsley Napley) who are both experts and enjoy pre-nuptial work including drafting, supporting or challenging pre-nups in Court.
Any discussion of pre-nups of course starts with Radmacher v Granatino [2010] UKSC 42, but we swiftly move on to Crossley applications (an application to the Court that the process of disclosure should be truncated because of the existence of the pre-nup) pursuant to Crossley v Crossley [2007] EWCA Civ 1491https://www.bailii.org/ew/cases/EWCA/Civ/2007/1491.html.  It is ‘tempting but risky’ was the conclusion, so it is only prudent when the pre-nup is a knock out blow.

We discuss the three essential procedural points that the Court is looking for before giving weight to the agreement – no unfair pressure, financial disclosure and independent legal advice.  We touch on the suggestion that an agreement has to be signed 28 days before the wedding and its relevance to giving time and space to understand and reflect on the proposed agreement and advice being given. We then turn to duress, fraud and misrepresentation and whether they are vitiating factors and what you would take into account when evaluating their impact on the agreement.  Connie refers us to the case of Traharne v Limb [2022] EWFC 27 (31 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/27.html  and AD v BD [2020] EWHC 857 (Fam) (08 April 2020) https://www.bailii.org/ew/cases/EWHC/Fam/2020/857.html.Nick discusses whether it is possible to entirely exclude what would otherwise be matrimonial property in a pre-nup, and refers to  Brack v Brack [2020] EWHC 2142 (Fam) (29 July 2020);  https://www.bailii.org/ew/cases/EWHC/Fam/2020/2142.html.

Connie discusses whether a pre-nup meets needs. She refers us to Ipekçi v McConnell [2019] EWFC 19 (04 April 2019);https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html, and Cummings v Fawn (Rev1) [2023] EWHC 830 (Fam) (14 April 2023) https://www.bailii.org/ew/cases/EWHC/Fam/2023/830.html.

Nick mentions HD v WB [2023] EWFC 2 (13 January 2023) – https://www.bailii.org/ew/cases/EWFC/HCJ/2023/2.html

We also discuss international agreements, and marriage contracts, including CMX v EJX (French Marriage Contract) [2022] EWFC 136https://caselaw.nationalarchives.gov.uk/ewfc/2022/136

S3 Episode 4: Dangerous Relationships with Professor Jane Monckton-Smith

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Professor Jane Monckton-Smith

Further information
This month we talk to Professor Jane Monckton-Smith.  The Professor is a specialist in homicides that are preceded by domestic abuse and coercive control. This is important for every single professional working in the family justice field because the Professor tells us that separation is the single biggest factor in homicide.

Coercive control is domestic abuse – it is not a facet of domestic abuse. It is a pattern of behaviour designed to trap someone in a relationship.  This can be violence/ stalking/ financial abuse/ psychological  etc.  We are reminded that it is the control, not the level of physical violence that is the metric for risk.  We discuss bi-lateral violence and how difficult that is for the Court to determine risk.  The Professor tells us that there maybe two people who are being violent, but only one of them is controlling; we need to identify that person.

The Professor also tells us about the eight stages on her timeline before fatal violence.  The Professor points out that anyone who is perpetrating coercive control, domestic abuse, or stalking, is somewhere on this timeline although that does not mean that it will always result in fatal violence.   However, she questions whether concepts like ‘low-level’ domestic abuse – sometimes used when there is limited physical violence – is a helpful approach.  The issue is not whether the victim-survivor has a broken bone, it is about the level the of control.

The Professor tells us how each stage on the timeline represents an escalation, and each of these stages can cause the victim-survivor serious harm.

Stage Red Flag
1 History of the controlling person Have they done it before?
2 The controlling person meeting someone they want to be in a relationship with The relationship is characterised by things moving very quickly(declaration of love/ moving in together)
3 The relationship It is dominated by coercive control/ domestic abuse
Note – most cases of coercive control do not move past this stage
4 Trigger stage – something that increases the risk This usually involves a separation or a threat of a separation – this may involve contact with family justice professionals.
5 The escalation – the controlling person is trying to regain control/ get the relationship back This is when stalking or post-separation abuse may start.  Family justice professionals need to be really
Note at this point – some controlling people will move on to someone else and start again with someone else
6 A change in thinking Homicidal ideation/ totally destroying someone

 

7 Planning the homicide This does exist – the idea that these homicides usually
8 Fatal violence – this could be the victim/ the perpetrator/ their children

The Professor also reminds us that not all disputes about children involve coercive control, but we need to identify the cases where the perpetrator is using the family justice system to continue their abuse.  We need to be alert to the fact that perpetrators are likely to be very at home amongst the fray of litigation.  Victim-survivors may find it easier to just agree with what the perpetrator wants, or could appear intractable, because they are determined not to have their children experience the thing that they have.

We also talk about how to approach initial advice, injunctions, Clare’s Law, whether there should be capacity for findings made in family cases to be shared with Police, when coercive controlling people have the capacity to change, what to look for in a perpetrator course, the use of coercive control experts, and so much more.

If you would like to know more about the Professor’s work, she has written a book ‘In Control; Dangerous Relationships and How They End in Murder’.

S3 Episode 5: Re-thinking Mediation 

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Jo O’Sullivan, Dr Jon Symonds and Rachel Chisholm

Further information
This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:
https://www.nuffieldfjo.org.uk/resource/separating-families-experiences-of-separation-and-support

Jon tells us about this research and how they looked at 42 people’s experiences of separation.  Eight participants in the study had been to mediation and told the researchers about their experiences.  Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance.  In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort.

We all agree that mediation is the gold standard for resolving issues about how to care for children.  We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past.  Jo talks about  the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation.  We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation.  Rachel reminds us of the importance of ‘do not harm’.

Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/

All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings.  Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time.

We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted.

S3 Episode 6: The Fair Shares Report

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Professor Emma Hitchings, Professor Gillian Douglas and Joanne Edwards

Further information

In this episode we are joined by Professor Emma Hitchings (Bristol University), Professor Emerita Gillian Douglas (Kings College, London), and Joanne Edwards (Chair of Resolution’s Family Law Reform Committee/Forsters) to discuss the Fair Shares report.

This report is the first time there is a fully representative picture of the financial arrangements families make (and in a lot of instances, don’t make) on separation and divorce, and how they arrive at those arrangements.  It is essential reading for anyone practising, or interested, in this area. The full report can be found here:
In this episode Emma tells us that the report found that the median value of assets on divorce is £135,000.  Thus, the cases that hit the headlines are not representative of most people’s experiences.  The research serves to dispel a lot of myths peddled in the media about finances on divorce.
In the research the academics classified the divorcees into different types or mindsets i.e. how they viewed their marriage, and their hopes on separation.  This arose from the qualitative data.  We discuss how using this typology can help understanding of how divorcees reach different outcomes despite having similar circumstances.  Broadly, there was:
The unequal couples – they can be the most problematic to help. There is invariably a power imbalance, and there could have been domestic abuse, including financial abuse.  In these cases, it is not possible for the parties to genuinely negotiate.  The effect can be that the less dominant party walks away with nothing, or a poor agreement.
The partners – these couples were a true joint enterprise during the marriage and that feeds through to how they agree things should be divided on divorce.
The housemates – these couples were individualistic during the marriage, they saw things as ‘theirs’, they kept their finances separate during the marriage, and they expect to keep what is ‘theirs’ on separation.
The parents – in these relationships the children are the most important concern, and the division of assets is structured to support parenting.  The parent with care was found to be very focussed on the immediate future.
Jo considers how being aware of these divorcee types may feed into practice. Emma and Gillian hope to be able to analyse whether each type impacts on the outcome process in the future.
We discussed how spousal maintenance is relatively uncommon, and where it is granted it is definitely not a ‘meal-ticket’ for life.  It is virtually always for a fixed term, and that term is generally linked with child-care responsibilities, and it is really associated with financial vulnerability of the receiving spouse.  We consider whether a different term would help dispel the myths as very rarely are people ‘maintained’ – they are usually working and just having some assistance in meeting their living expenses.
The research found evidence that mediation outcomes did not work out as people expected in many more instances than outcomes arrived at through lawyer negotiations or court. We try to analyse why that may be this case; was it because people had exhausted other options and felt obligated to get to an agreement in mediation. Jo, as a mediator, considers the implications.
We invite our guests to share some concluding thoughts for reform.  Gillian believes that how we share pensions (as only 11% of cases have pension sharing orders), and the needs of older children would be obvious areas for reform.  Emma says that this research dispels the proposals that there should be a time-limit on maintenance, or a presumption of 50/50 sharing as that would lead to unfairness and parties being unable to meet their needs.  As we look ahead to the Law Commission publishing a scoping report next September, Jo applauded the fact that Fair Shares gives a proper evidential basis for any reform.
If you would like to see all our guests speaking at the launch of the report, please follow the link below:

S3 Episode 7: Business accounts; have a healthy dose of scepticism

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Robert Cole and Peter Smith

Further information

This month we are treated to this tour de force by Robert Cole who is Head of the Family Team at Broadway House Chambers, Leeds and regularly sits as an arbitrator and ENE/pFDR adjudicator across the country, and Peter Smith from Quantis Forensic Accountants about how to analyse business accounts.
We immediately launch into a discussion about what should cause you concern in business accounts, and the well known issue that businesses always seem to be failing when people are getting divorced.  Therefore, how professionals need to have four to five years accounts to be able to look at trends.  Peter suggests we should take an overview of:
  • Has revenue, sales or turnover gone down?
  • Have gross profit margins gone down? And
  • Have costs gone up?
These factors will provide a good indicator of any causes for concern.
Robert adds to that you should have look at what fixed assets there are, and whether the valuation has been updated.  If you consider these points, you will have good insight into whether you need to ask for a valuer from the Court.
Peter and Robert give us some tips for questionnaires, including:
  • Asking for a copy of up-to-date profit & loss accounts, management accounts and balance sheets as most decent size businesses with accounting software will have that immediately available;
  • Summaries from the VAT portal;
  • And always checking viewing the Companies Article of Association;
We discuss when valuations from the business’s own accountants are reliable. Before moving on to consider what type of valuations should be used for each business.
Robert advises us that to be successful in a Daniels v Walker application that you first need to have tried to clarify matters with the expert, but even where you are not going to pursue a Daniels v Walker application but just want to make submissions about the reliability of the conclusions then questions are important to tease out vulnerabilities in the report.  Peter also points out that there is a distinction between wanting to challenge the expert’s judgment – which can be done without a separate expert – and where an expert has made a mistake for example an error in the factual basis.
We discuss when should a quasi-partnership apply, and Robert advises us to use the checklist from Re: Bird Precision Bellows [1986] 2 WLR 158:
  • close working relationship between the shareholders (usually pre-existing the incorporation);
  • restriction on the transfer of shares to a third party;
  • the shareholders continue to be actively involved in the day-to-day running of the company (not necessarily employed but consulted about day-to-day and strategic decisions)
During the discussion, we refer to the following cases:

 V v V (Financial Remedy) [2005] 2 FLR 697

Martin v Martin [2018] EWCA Civ 2866 – risk and liquidity
Versteegh v Versteegh [2018] EWCA Civ 1050 – on the lack of reliability in valuations
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
G v G (Financial Provision: Equal Division) [2002] 2 FLR 1143 – Where shareholders act in concert and would be unlikely to sell separately then discount less applicable
Clarke v Clarke [2022] EWHC 2698 – on whether a minority discount should apply
Technical factsheet from ACCA – for minority interests discounts
 WM v HM [2017] EWFC 25 (09 May 2017)

S3 Episode 8: PAG2, Pensions, and a Goodbye to Hilary

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Hilary Woodward, Paul Cobley and Rhys Talor

Further information

This month we are joined by Hilary Woodward (Honorary Senior Research Fellow with Bristol School of Law), Paul Cobley (Oak Barn Financial Planning) and Rhys Taylor (36 Group) to discuss PAG2: https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf
Hilary tells us about the changes in PAG2 and mentions the guide to the changes which is available on the webpage:
The changes include the Divorce, Dissolution and Separation Act 2020, apportionment, short-marriages, lifetime allowance, Galbraith tables, and where there is an age-gap between the parties.
Rhys explains the Galbraith tables – which is an attempt to provide the ‘true value’, or ‘market value’ of a defined benefit pension (not defined contribution schemes) for the purpose of divorce other than by use of the CE.  They provide a multiplier according to the person’s age and benefit to use against the income stream for a pension.  PAG2 says they are useful starting point, but remember they are a tool not a rule, which can be used when considering off-setting without the assistance of a PODE.  They have not had high level judicial consideration but they do appear in At A Glance.  Remember the current tables were drafted in early 2022 so just as the war in Ukraine started, and prior to Liz Truss’ terms as Prime Minister so there have been lots of changes in the bond markets since then.  The tables will be updated in the next At A Glance.  Paul reminds us that most of the time we are dealing with deferred pension scheme benefits i.e. where an employee has a pension scheme benefit from a previous employer.  It is therefore really important that you obtain the re-valued income to today’s date and not what the income would have been on date the person left the company before applying the multiplier.
We discuss off-setting, and that the key thing to ask yourself is do you have a broad handle on what the gross value of the pension is worth before you start trading it with other assets. Followed by apportionment – when is it appropriate, including in short marriage cases.  Importantly PAG2 stresses that the relevant date, when apportionment is appropriate, is when seamless cohabitation prior to marriage commences – therefore we all should stop asking seeking the additional pension calculation from when the actual marriage starts.
We discuss that the Lifetime Allowance is being abolished by the Finance Act (No. 2) 2023:
The lifetime allowance tax charge has in effect already been abolished, and from the 6th April 2024 the lifetime allowance will be abolished.  However, it will be replaced by the lump sum allowance, and the lump sum and death benefit allowance in the future.  The complexity comes that if a person had lifetime allowance protection before 6th April 2024 that allows a higher lump sum than is available on the standard lump sum allowance basisunder the new Act, they would still be able to benefit from the previous protections. Therefore, you must still find out whether the parties have a lifetime allowance protection.
There are four new suggestions for dealing with when there is an age gap between the parties, and one party is receiving their pension, and the other person needs the pension to meet their needs but is too young to receive it currently.  PAG2 now also suggests consideration of judicial separation (not divorce), spousal maintenance, an increased percentage PSO or consecutive orders (pension attachment to pension sharing orders).  Also deferred pension sharing orders are technically possible but inherently risky.
We discuss the problem with ‘moving target syndrome’ i.e. that the value of the pension at the time of the transfer is likely to be different to the value it was at the time of reports/ trial.  This is particularly an issue with Defined Benefit Schemes, although it affects Defined Contribution schemes too.  Unfortunately, in the last two years the values have often been a lot less at implementation (where in the past they have been a lot higher).  It is important that we advise clients of these risks.
Hilary, Paul and Rhys endorse the Survival Guide to Pensions on Divorce: – https://www.advicenow.org.uk/guides/survival-guide-pensions-divorce
For lay clients and litigants in person.  It is too is being updated, and is due to be released in May 2024.
Finally we say goodbye to Hilary.  Do read Rhys’ article about Hilary in the financial remedy journal at: – https://financialremediesjournal.com/content/interview-with-hilary-woodward.871526729c204f91bd4346757b9895b2.htm