Author: Isobel Rarok

Are you supposed to be receiving child maintenance but the paying parent has moved abroad? Or are you being pursued for child maintenance, having moved abroad, and think that the amount is wrong or needs to be revised? If so, you will want to understand how REMO can help you. 

REMO stands for Reciprocal Enforcement of Maintenance Orders and it is essentially an international agreement between countries to help recover or make changes to child maintenance from parents who live in different countries.

REMO can help parents living in England or Wales (when the other parent has moved abroad) and if a parent is living abroad (and the paying parent lives in England or Wales). This is on the strict basis that both countries are participating REMO countries.

Before beginning the REMO process you must first ensure that you have a child maintenance order (or equivalent) that you can enforce. In England or Wales this will involve making an application under Schedule 1 of the Children Act 1989 (via Form A) for an order specifying how much child maintenance the other parent should pay. You can make this application and obtain the court order even if the other parent does not engage with the court proceedings. It is important to take this step first because without it you have no order to enforce via the REMO system. A calculation from the Child Maintenance Service will not suffice. You must have a court order. 

The aim of the REMO system is for reciprocating countries to enforce the child maintenance order you have as if a court in that country had made the order itself.  It sounds straightforward but the REMO system can be complex and slow.

Once you have a court order (confirming the amount of child maintenance to be paid), the first stage in the REMO process is to find out where the ‘Central Authority’ is in the country where you live. All applications must go through this Central Authority. The Central Authority in England is at: The Reciprocal Enforcement of Maintenance Orders Unit (REMO), Victory House, 30-34 Kingsway, London, WC2B 6EX. You can find the list of reciprocating countries and their Central Authority addresses here:  https://www.hcch.net/en/states/authorities

Once you know where your Central Authority is, you need to make an application for ‘registration and enforcement of your order’. The precise form and details you need to provide will vary from country to country.

Your application will need to be supported by documentation i.e. your original court order and details of any steps you have taken to try to obtain payment from the paying parent directly. It will also be helpful for the application to include details of where you think the paying parent lives and works. The more information the better. If any of your documents are not in the language of the court who will be asked to deal with enforcing the decision, you will need to obtain a translation.

Registering and applying to enforce your order is a very important step that must be done correctly. If it is not, the court will not have the power to obtain payment from the other parent. You can make the application yourself in England or Wales (with the assistance of REMO) but you may want to consider instructing a specialist family solicitor to ensure this is done correctly.

Your Central Authority is likely to require you to obtain a ‘Statement of Enforceability’ from the court that made the original order to send with the application. So, contact the court as early as possible about this. You may need to attend in person before a judge to obtain this documentation. Again, you may prefer to instruct a specialist family solicitor to assist with this. 

You do not have to use a lawyer to access the REMO system, but the application process can be complex and confusing. Even if you do not instruct a lawyer to assist you with the application, it is advisable to instruct a specialist lawyer in the country where the court will hear your application (where the paying parent lives) to ensure that you are best represented at any court hearings.

Once your court order has been registered in the reciprocating REMO country (this can take many months), you can proceed as if that country made the order in the first place i.e. apply to enforce it. 

The REMO process also allows for the original court order to be modified or reconsidered in certain circumstances i.e. the amount due to be paid can be changed by the foreign court dealing with it. This is useful if you find yourself on the receiving end of a REMO application.

In England or Wales, an application to enforce a family court order and deal with any arrears is likely to involve 3 separate court hearings. The first two will be preliminary ‘directions’ hearings at which the court determines what further evidence is needed from the parties – for example disclosure of P60s, tax returns or witness statements. The last hearing is a Final Hearing – at which you may need to give evidence in the witness box. At the end of the Final Hearing a judge will determine whether money is owed and, if so, how much. The court may also use its powers to ensure payment is made. For example, in England and Wales the court has the power to put a charge on someone’s property or make an ‘attachment of earnings order’ (where the court can obtain payment directly from someone’s employer). The power the court has to obtain funds for you will depend on which country is dealing with your REMO application.  

If you are successful in enforcing your court order and you incurred legal costs in doing so, it would be advisable to request a cost order against the other parent. Whether you can obtain a cost order at the end of a REMO case will depend on the specific rules of the country enforcing the order and the specific circumstances of your case, but it is always something to request.

ToLATA or Not ToLATA? That is the question; well it may be for separating unmarried couples seeking to resolve a dispute relating to their land or property.  Today, the number of couples who cohabit (i.e. live together but do not marry or enter into a civil partnership) is increasing, with around 25% more people now cohabiting than a decade ago (according to the Office for National Statistics (ONS)) Contrary to popular belief, there is no such thing as a “common law marriage”, so these cases pose a particular challenge when it comes to  dividing assets following separation,  This is where the Trusts of Land and Appointment of Trustees Act 1996 (‘ToLATA’) comes in.  In this article, we will explain the purpose of ToLATA, and why this may provide recourse when determining how property and land should be handled following the separation of an unmarried couple.

What is ToLATA?

In the event of a property or land dispute following the separation of an unmarried couple, a claim can be brought under the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA) to request that the Court make a decision regarding that property. 

Under ToLATA, the Court will have the power to make a decision (as it sees fit) on:

• Who owns the property, and how this is shared
• Whether the property or land should be sold
• Who should remain in the property following separation
• Whether parents or grandparents should be able to regain their financial interest in a property.

They cannot, however, remove or appoint trustees.

Before ToLATA, its predecessor, the Law of Property Act 1925 imposed a duty to sell property owned by more than one person in the event of separation.  Section 5(1) of TLATA, in contrast, states that there is no duty to sell in such circumstances.

What is a ‘Trust of Land’?

A trust of land can arise in several ways, including:

• expressly in writing
• implied, resulting, or constructive – where the proprietor has acquired the land using funds provided by another
• as a statutory trust – imposed when two or more persons own land jointly
• as a bare trust where the trustee is a nominee for a beneficiary

As such, where a couple have been living together in a property that was purchased by one person partially using the funds of the other person, this would create an implied trust of land.  Where property is jointly owned by two people (i.e. co-owners), they are classed as both trustees and beneficiaries.  Claims brought under ToLATA can, therefore, be brought by either party as a trustee or beneficiary.

Section 14 of ToLATA states:

“(1)Any person who is a trustee of land or has an interest in property subject to a trust of land may make an application to the Court for an order under this section.

(2)On an application for an order under this section, the Court may make any such order—

(a)relating to the exercise by the trustees of any of their functions (including an order relieving them of any obligation to obtain the consent of, or to consult, any person in connection with the exercise of any of their functions), or

(b)declaring the nature or extent of a person’s interest in property subject to the trust, as the Court thinks fit.

(3)The Court may not, under this section, make any order as to the appointment or removal of trustees.

(4)The powers conferred on the Court by this section are exercisable on an application whether it is made before or after the commencement of this Act”.

How can a family law solicitor help with a ToLATA claim?

It is always advisable to seek advice from a family law Solicitor who deals with ToLATA claims, as this is a specialist area of law. They will be able to explain the best options based on your circumstances and whether making a ToLATA claim is appropriate.  Key to this is collating enough evidence that a trust of land exists and who has a beneficial interest.  A family law Solicitor will act quickly to protect the interests of their client, especially where they have no legal ownership of the property and their beneficial interest is not protected on the registered title at the Land Registry. Where necessary, an application can be made to the Land Registry to have their beneficial interest noted and place a restriction on the title of the property to prevent the registered owner from selling it.

A family law solicitor can also intervene urgently where one person has been unlawfully excluded from the property by the other party by seeking an interim injunction.

Where possible, offers will be made (a Part 36 Offer) in order to try and  reach an agreed conclusion out of court either before ToLATA proceedings are commenced or throughout the course of the proceedings. 

Before an individual or their Solicitor can bring a claim under ToLATA at court, they must follow the required pre-action protocol. This includes seeking an Alternative Dispute Resolution (ADR) (e.g. mediation, negotiation, or arbitration) outcome, as well as sending a letter before claim setting out the facts of the dispute, the law and the relief claimed..  If necessary, a claim can then be brought under section 14 of ToLATA before the High, County, or Business and Property Court, depending on which is appropriate.  Your Solicitor will also  determine whether to follow the part 7 or part 8 procedure – this depends on the extent of the dispute, whether matters of fact are disputed, and the outcome required (e.g. part 8 must be followed if the application is to sell the property in question).

Costs

As ToLATA proceedings are must follow the Civil Procedure Rules, the general rule is that the successful party is entitled to recover their costs from the losing party, although what order is made is at the court’s discretion. In deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including—

a) the conduct of all the parties;

b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

c) any admissible offer to settle made by a party which is drawn to the Court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

If a party brings a ToLATA claim which is unjustifiable, defends a claim or an issue on which they should have conceded, or neglects to make any reasonable offers they could find themselves having to pay their opponent’s legal fees in addition to their own.

It is therefore essential to take advice in respect of the merits of any claim you may bring or have to face defending from a specialist family solicitor.

Final words

Bringing a claim under ToLATA to resolve a property ownership dispute following the separation of an unmarried couple requires careful consideration of the possible outcomes, the likelihood of making a successful claim, and the costs (including the costs risk) and timescale involved.  An experienced family law Solicitor will listen to the details of your case and explain all aspects of bringing a claim before you make the decision to proceed.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about bringing a claim under ToLATA, please phone +44 (0)20 7129 7978 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

The theme of the 2022 Mental Health Awareness Week during mid-May was loneliness. This condition, experienced by many of us throughout our lifetimes is seldom discussed due to the feelings of shame and stigma attached to the word ‘lonely’. And in any case, how can a person feel lonely in the age of Facebook and other social media platforms, where connection to others is a mere click away? The truth is, although a widely publicised 2018 study showed that moderate social media use (30 minutes a day, three times per week) had a positive effect on mental well-being, almost a quarter of adults in the UK report feeling occasionally lonely.

Being single in later life as well as suffering from mental health problems such as depression, are factors that can increase a person’s chances of experiencing loneliness. And with the increase in divorce among people over 60 years, the mental health implications of marital separation in adults must be acknowledged.

What are the mental health risks of divorce for adults?

When compared with the numerous studies examining the impact of divorce on children, there is little research available on how divorce affects those who are experiencing the process. One recent paper found that in cases of divorce where the parties were over 50 years:

“older adults’ depressive symptoms (GHQ) increase in the years before and upon union dissolution. After separation, depressive symptoms decrease and return to approximately previous baseline levels. Our analyses on heterogeneity in the effects of gray divorce show that post-divorce adjustment is faster for childless adults than for parents. We find no evidence that adjustment after gray divorce is slower for women than for men, or for persons who already experienced a prior union dissolution than for those who separate for the first time.”

The circumstances surrounding the divorce can greatly increase the chances of negative mental health implications. Long, drawn-out, contentious proceedings, divorcing a narcissist, disputes over finances, jurisdiction, and child arrangements – all these factors can lead to stress, anxiety, and depression. Matters can be complicated further in situations where one spouse’s pre-existing mental health condition affects divorce proceedings.

How can I look after my mental health during a divorce?

The following tips can help you stay positive and focused throughout the divorce process:

• Prioritise getting enough sleep, exercise, and healthy food. When going through a relationship breakup it is easy to overindulge in wine, ice cream, and Netflix as a way of coping. And a good old-fashioned pity party once in a while can be extremely therapeutic as long as 90% of the time you are taking care of yourself physically.
• Don’t cut yourself off from family and friends. Although it is common to feel others are judging you for getting divorced, in all likelihood your loved ones are worried about you and want to help. Let them take your children for an afternoon so you can have some time to yourself. And remember, you do not have to pretend everything is fine if you feel down – a problem shared is a problem halved as the old saying goes. This point is especially salient for men, who tend to rely on their spouse for emotional support and find themselves adrift when they are no longer available to talk to and share life with.
• Consider professional help. Divorce can ignite a raft of negative memories and emotions that need to be worked through so you can come out the other side a stronger person. A counsellor or psychologist can provide vital support and guidance before, during, and after your divorce.

Final words

Few people are prepared for the emotional distress divorce can cause. One factor that can greatly alleviate stress and worry is choosing the right divorce solicitor. Make sure you talk to a few to find one who you feel you can trust and who has an approach that suits you. A good family law solicitor will not add to your anxiety by leaving you wondering how your case is progressing, instead, you will be kept constantly informed. They will also spot signs of distress and gently refer you to a professional counsellor if they feel you need extra support. One way to choose a high-quality divorce solicitor is to look for one who is a Resolution member. They are required to follow a Code of Practice and are trained to resolve disputes in a non-confrontational manner.

If you are feeling things are becoming too much, please remember that you are not alone. You can call the Samaritans at any time of the day or night, 365 days of the year on 116 123.

Edwards Family Law is a niche London-based firm specialising in complex family law cases following the breakdown of a relationship. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Pride marches will be held up and down the country, with those in Brighton, London, and Manchester, in particular, drawing thousands onto the street. As a divorce law solicitor, I have advised and represented many same sex couples whose relationships have broken down resulting in divorce or civil partnership dissolution. And although some clients worry that the law may be different when it comes to getting divorced or dissolving their civil partnership, recent changes in the law mean regardless of your sexual orientation, ending a marriage follows the same course.

No requirement to prove fault

On 6th April 2022, the Divorce, Dissolution and Separation Act (DDSA) 2020 came into force. Before April, the only ground for getting a divorce was that the marriage has irretrievably broken down for one of the following reasons:

• Adultery
• Unreasonable behaviour
• Desertion
• The couple had lived apart for more than two years, and both agreed to the divorce
• The couple had been separated for five years, no consent was required

Due to the legal definition of adultery being confined to an act between a man and a woman, sexual intercourse between people of the same sex was never a reason for the marriage irretrievably breaking down. Thankfully, this anomaly has now been swept away as the DDSA 2020 ushered in no-fault divorce. Under the DDSA 2020, one or both parties only need to make a statement that the relationship has irretrievably broken down – no reasons are required. There is also no longer any scope for one party to contest the divorce in order to prevent it. The court must accept the individual’s or couple’s statement that the marriage has irretrievably broken down and make a divorce order.

Divorcing in a country that does not recognise same sex marriages

One area of divorce law in which there is a slight difference between the law applying to opposite sex married couples and those of the same sex is that of jurisdiction. Although same sex marriage is now recognised in many territories, distressingly, there remain 71 countries that criminalise same sex relationships and marriage. Other nations, for example, India and Japan, do not allow couples of the same sex to marry. However, in the aforementioned countries things are progressing, for example, the Delhi High Court is currently hearing several petitions seeking to legalise same sex marriage and in March 2021, a district court in Sapporo, Japan ruled that the country’s non-recognition of same-sex marriage is unconstitutional.

To ensure same sex couples marrying in England and Wales can also divorce, the court has jurisdiction to facilitate the divorce of a same sex couple who married in the UK but are living in a country where their marriage is not recognised. This is regardless of whether or not one or more of the parties is a habitual resident or domiciled in England and Wales.

Wrapping up

Getting divorced can be a stressful time and having an experienced divorce solicitor who is a member of Resolution can make a great deal of difference, especially when it comes to the financial settlement in high-net-worth and/or international divorce cases. Our team can advise and represent you during your divorce and you can be confident that we will tenaciously work to protect your best interests.

Edwards Family Law is a niche London-based firm specialising in complex family law cases . To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

The case of X v C [2022] EWFC 79 dealt with a situation one might not automatically associate with family law – the right to freedom of speech. His Honour Justice Farquhar was asked to consider whether the financial remedies ‘needs’ case before him should have reporting restrictions attached to protect the parties’ seven year old child’s European Convention on Human Rights (ECHR) Article 8 (private life and family) rights.

What are the ECHR Article 8 and 10 rights?

The ECHR in question are as follows:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 has been interpreted broadly by the courts. Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Neither Article 8 or Article 10 rights are absolute, meaning that unlike Article 3 for example, which prohibits torture and “inhuman or degrading treatment or punishment” the courts must conduct a balancing exercise by weighing up the claimant’s ECHR right and, to put it broadly, factors such as the public good, national security, and the independence of the judiciary (to name but a few).

Why did the court decide that the child’s Article 8 rights were greater than the parents’ Article 10 rights?

What is interesting about this case is that neither the husband nor wife were high net worth or famous, situations that most commonly involve anonymity decisions. His Honour Justice Farquhar commented that the mere fact the parties to the proceedings had a child who could be identified was not sufficient justification to anonymise a financial remedy judgment. What did warrant consideration, however, was the presence of highly contentious, ongoing Children Act 1989 proceedings in which both parties had made various allegations against one another. This fact increased the child’s Article 8 rights as they were aware of the dispute and would undoubtedly be adversely affected by any publicity surrounding the case. This risk increased the child’s Article 8 rights being compromised.

In addition to the above, there was an accepted risk that the child’s father may publish an un-anonymised judgment for inappropriate purposes. His Honour Justice Farquhar was satisfied that H had at times been dishonest and was motivated to cause W distress, which would inadvertently cause harm to the child.

What does the decision in X v C mean for parties to Financial Remedies Court proceedings?

His Honour Justice Farquhar stated that proceedings in the Family Court, including the Financial Remedies Court, should remain as open as possible. The Family Court has faced years of criticism regarding closed-door hearings and accusations of ‘secrecy’. In June 2022, The Hon. Mr Justice Mostyn controversially reiterated his opinion in Gallagher v Gallagher (No 1) (Reporting Restrictions) [2022] EWFC 52 that the standard practice of anonymising financial remedy judgments conflicts with Scott v Scott [1913] UKHL 2 and Family Procedure Rules 27.10 and 27.11, and concluded it is unlawful. Instead, an anonymisation order and reporting restrictions can only be made after a formal application has been filed in court and a careful balancing exercise has been undertaken. He confirmed that this was his final opinion on the matter, but he would “leave it to others to determine [if he is] right or wrong”.

Undoubtedly, a higher court will indeed do just that and hopefully clarify the matter for family litigants.

Edwards Family Law is a niche London-based firm that deal with complex, high value and international family law. To find out more about financial dispute resolution, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

If you or a family member is in immediate danger, please call 999. Further support can be found at http://www.refuge.org.uk/ or by phoning the free 24-hour National Domestic Violence Helpline on 0808 2000 247.

Domestic abuse affects people of all cultures and socio-economic statuses. Affluent victims of domestic abuse will often experience economic abuse, and coercion and control during an abusive relationship. If you have been able to escape your situation and are now divorcing your abuser, one of the foremost questions in your mind is likely to be, whether or not the abuse you have suffered will lead to a more favourable financial settlement.

What is domestic abuse?

The Domestic Abuse Act 2020 (the Act) provided a statutory definition of domestic abuse for the first time. The definition consists of two parts, the first being the relationship between the victim and their abuser, and the second defining what domestic abuse is.

Under section 1 of the Act, domestic abuse occurs if Party A and Party B are both aged 16 years or over and the behaviour is abusive. Abusive behaviour is defined as:

• physical or sexual abuse;
• violent or threatening behaviour;
• controlling or coercive behaviour;
• economic abuse; and/or
• psychological, emotional, or other abuse.

Economic abuse is also defined as any behaviour that has a substantial adverse effect on B’s ability to:

• acquire, use, or maintain money or other property; or
• obtain goods or service.

What factors will the court consider when deciding on a financial settlement order?

The Court will look to section 25 of the Matrimonial Causes Act 1973, paying consideration to the following factors when making a financial order in a divorce case:

The resources available to the parties, both in terms of capital and income, and those being extant or reasonably foreseeable;

• The financial needs of each party, considering the needs of dependent children and any disabilities;
• The duration of the marriage and the age of the parties;
• The conduct of the parties (but only in exceptional circumstances);
• The standard of living enjoyed by the parties;
• Any benefit either party will lose as a result of the divorce; and
• The contributions of each party to the marriage (both financial and non-financial).

Many clients assume that the fact one spouse was abusive means that the court will consider this under the guise of ‘conduct’ when considering the section 25 factors. However, this is not the case. Conduct will only be taken into account if the court concludes that it would be inequitable to disregard it. To illustrate how high the hurdle to overcome is, in H v H (Financial Relief: Attempted Murder as Conduct) [2005] EWHC 2911 (Fam) the court made an order to leave the husband with only a small percentage of the matrimonial assets after he had tried to murder his wife, but he received a portion of the matrimonial assets nonetheless.

Will domestic abuse be considered when assessing financial need?

If domestic abuse is taking place within a marriage or civil partnership that results in the victim being unable to earn their own income, then it is likely that the conduct could be considered when the financial need of the financially weaker party. In addition, as a way of keeping control of the situation, the abuser may not make a full and frank financial disclosure. These are persuasive factors that may result in the court looking at the effect that the domestic abuse has had on matters, such as the resources available and the financial needs of the victim.

Take for example a situation where one spouse runs a successful business and the other focuses on looking after the home and children. Under the principle set out in the landmark case of White v White [2000] UKHL 54 “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. So the fact that one spouse earned the money and the other ran the home and family will not automatically result in the breadwinner receiving a greater share of the matrimonial capital. Developing on this, if the spouse who was the victim of domestic abuse can show that they were prevented from working outside the home and/or having their own money, or that their self-confidence has been so eroded that it will take time for them to re-enter the workforce, the court may award them a greater share of the assets based on lack of resources and real need. This is especially true if the victim is caring for young children.

Wrapping up

To summarise, although conduct more generally will not normally be given too much automatic weight by the court when gauging the section 25 factors against the facts of the case and the making of a final financial orders, the impact that domestic abuse (including economic abuse) has had on the victim’s economic needs and resources may be considered as a factor alongside the section 25 factors as a material part of the case which could influence its outcome in some cases. It all depends on the circumstances of each individual case. What is important is that victims of domestic abuse leave the relationship and find safety. With expert legal advice and support from other services, you can move on to a positive future.

Further help and support are available from the below organisations.

National Centre for Domestic Violence (NCDV) – 0800 970 20 70

Refuge – 0808 2000 247 (24 hours)

Women’s Aid 0808 200 0247 (24 hours)

ManKind – 01823 334 244

Galop LGBT Domestic Abuse Helpline – 0800 999 5428

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce, separation, and international family law matters. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

Arbitration offers significant advantages, and some downsides, in comparison to the England and Wales court system in family law matters, as Isobel Rarok of Edwards Family Law explains.

Many are aware of the significant presence of arbitration in the corporate and commercial spheres but may not appreciate that this form of alternative dispute resolution (ADR) is also available within the family law setting. Since 2012, arbitration has offered an alternative to court proceedings in financial remedy cases and, since 2016, has also been available in relation to child arrangements and relocation matters.

“Arbitration differs from other forms of ADR, which are designed to guide but not bind parties.”

Arbitration has increased in popularity due to the ongoing backlog faced by the court system; statistics released by the Law Society in December 2022 (covering the period from July to September 2022) show that the family courts continue to face significant delays and issues with judicial capacity. According to these statistics, all types of cases (save for consent order applications) are taking longer to dispose of than during the same period in 2021. These delays often lead to additional legal costs for both parties and can add to animosity. While many parties endeavour to resolve their cases voluntarily, this is not always possible, and many assume that there is no alternative to court proceedings. Could arbitration be the answer?

What is Arbitration?

 Arbitration is a form of ADR and takes place outside of court proceedings. Parties enter into an agreement to appoint an arbitrator, by whose determination (known as the “award”) they agree to be bound. The arbitrator will take the role of the “judge”, hearing and then determining the application. The arbitrator’s determination is equivalent to a final judgment and will be binding upon the parties. The arbitration award is then drafted into an order, which is sent to the court in the usual way to be approved and sealed by the court.

It is important to understand that arbitration differs from other forms of ADR, such as mediation and private financial dispute resolution hearings that are designed to guide parties, but not bind them.

The court will not vary the terms of the arbitrator’s determination when it makes the formal order, which means that the process effectively replaces court proceedings. The court retains a residual power to overturn or vary the arbitrator’s award if it is not deemed to accord with the relevant statutes, but given that family law is inherently discretionary, such a situation will be rare; only occurring in exceptional circumstances.

“Agreeing to arbitration can be very useful if one party is concerned about details of their financial and personal affairs ending up in the public domain.”

Further, following the case of Haley v Haley ([2020] EWCA Civ 1369), it is now possible to appeal an arbitral award. Again, this is likely to be the exception, rather than the rule.

Notwithstanding the above, arbitration is one of the most effective means to promote certainty and a swift resolution in family proceedings.

Advantages

Timing

One of the main advantages of proceeding by way of arbitration is timing. There are a number of arbitrators in England and Wales who are qualified and recognised to hear family law disputes. The arbitrators have control over their own workload and so typically do not have the significant backlogs faced by publicly funded courts and judges. Due to the number of practitioners qualified to arbitrate matters, there will almost always be someone available to take on the case, even at short notice.

Further, the arbitrator is privately funded, by the parties, which enables them to dedicate more time to considering the issues, the documentation and evidence placed before them, than a publicly funded court judge could. This can be particularly valuable to the parties if the case has additional complexities, such as international or offshore wealth structures. The costs of the arbitrator can be met by one or both of the parties, but the avoidance of the lengthy delays often faced in the public courts system means that the benefits often outweigh the costs of arbitration.

Flexibility/control

Parties also have additional control over the process. The parties will agree on which arbitrator to select, and can opt for an experienced family law practitioner, in many cases with expertise in the issues specific to their case. This is something that cannot be guaranteed in the court process, where parties have no influence or control over which judge will hear their case.

There can also be fewer procedural requirements. The parties and their solicitors can, in conjunction with the arbitrator, elect what directions they consider necessary to resolve the dispute, allowing them to build a more tailored approach. Timeframes can be led by the parties, subject to the arbitrator’s availability.

Confidentiality

The arbitration process, including the documents and evidence produced, remains confidential to the parties and their advisors. The same is not always true of family law cases; increasingly so as, while family law cases are heard in private, the family court “Transparency Pilot” launched in January 2023.

This Pilot has given rise to a presumption that accredited journalists and legal bloggers are permitted to attend family court hearings, report on what they see and hear, and are allowed access to certain documentation (see further details here). Whilst anyone reporting on a case must ensure children cannot be identified, more cases are likely to be reported and details made public, as a result of this new approach.

The guarantee of confidentiality within the arbitration process makes it an attractive alternative to court proceedings in many cases. This can also help to promote full transparency from parties to facilitate candid negotiations. Agreeing to arbitration can also be a good form of leverage if one party is particularly concerned about details of their financial and personal affairs ending up in the public domain.

Any appeal of an arbitration award would take place openly and removes this confidential protection, but as set out above, most awards will be made by experts in their field after significant consideration, so appeals are infrequent.

And the Downsides?

Parties should be aware that there are limitations to what arbitration can achieve, certain orders cannot be made by an arbitrator, such as third-party disclosure orders or certain interim orders, such as injunctions.

It is always best to seek specialist legal advice to ascertain whether a case is suitable for arbitration and what the options are more generally in relation to all the ADR processes potentially available.

When couples divorce, disputes will often arise around the current ownership of assets and which of the parties should retain them, but what happens when extended family members stake a claim to an asset or assets the court is considering?

Such issues can include where there are informal or fluid arrangements in respect of family-owned assets such as properties and businesses, as well as where funds are provided to either or both of the spouses by extended family (often for the purchase of a property or investment in a business) and whether these funds were intended to be a gift or a loan. Conversely, parties to a divorce can also face difficulties where assets in which one of them has a beneficial interest is held in the name of a third party.

Despite it being fundamental that the judge in any case clearly understands the extent of parties’ interests in their assets, they can be left having to determine this with little or no documentary evidence.

An additional complication is that, generally, a decision in the family court will only be binding on the parties to the divorce, unless the relevant third parties are joined to the proceedings, meaning one party may be left with a decision that they could find difficult to enforce.

What is intervening?

Where a third party is claiming an interest in property that is the subject of financial remedy proceedings, or where one of the parties has an alleged interest in property owned by the third party, intervening in the financial application will formally add the third party to the proceedings. This gives them the opportunity to be heard in respect of their interest as well as binding them by the court’s decision.

While the court has the power to join or remove parties at it sees fit, often an application for a joinder will be made by one of the existing parties or the third party themselves. Such an application should be made at the earliest possible opportunity, on notice to the other parties.

The test that the court applies when considering whether to join a third party is namely whether:

a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

While the threshold for joinder is not particularly onerous, the parties must consider whether it is proportionate to do so, taking into account that intervening is likely to result in additional hearings, further witness evidence and pleadings.

Intervening also comes with a costs risk as the ‘no order as to costs’ approach within financial remedy proceedings, does not apply in intervenor cases. Instead, they are considered a ‘clean sheet’ case in which the court can make whatever costs orders it sees as fair. While costs orders are still discretionary and not automatic, an unsuccessful party (including intervenors) is at risk of being ordered to pay the legal costs of the successful party, as well as paying their own fees.

If intervening may not be worthwhile, a party can apply to for their extended family members to be heard as witnesses giving written and/ or oral evidence in respect of the arrangements in place. Where it is one of the parties asserting that the other has an interest in assets held by a third party, they may look into issuing a witness summons, which is a document requiring a witness either to attend court to give evidence or disclose documents in order to assist the court.

Each case is different, and arrangements in place can vary drastically, so it is vital that specialist family law advice is sought in respect of the strength of your case and the cost and risks that could be involved with intervening before any such application is made.

How to protect your assets for the future

Many families are now looking into how they can best protect their interests should divorce or another dispute as to ownership arise. Judges in the family court have a wide discretion to make findings based on the evidence before them, so iron clad protection is never guaranteed. That said, loan agreements and other contemporaneous documentation and written correspondence (including emails and text messages) can represent strong evidence of each party’s intention in giving or receiving gifts or loans.

A pre-nuptial agreement properly entered into can also be a useful tool in protecting family-owned assets and defining an extended family’s interest in individual assets at the outset of a marriage. While family law judges still retain an overall discretion in cases involving pre-nuptial agreements, such an agreement can provide a judge with evidence that each party to the marriage understood the wider family’s intentions and the arrangements in place.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about pre or post-nuptial agreements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

If you are an unmarried parent seeking child maintenance from the non-resident parent, your first recourse is likely to be the Child Maintenance Service (CMS). However, the CMS’s jurisdiction is limited to cases where the non-resident parent earns less than £156,000 gross per annum and is based in the UK. If you are seeking child maintenance from a high earner and/ or someone based outside of the UK, you may be able to apply to the court for additional financial provision for your child’s benefit.

Schedule 1 of the Children Act 1989 (Schedule 1) provides provisions to protect and provide for financial support for a child in a situation where the parents are unmarried or have not entered into a civil partnership. Unfortunately, due to most of the existing case law featuring high-net-worth couples, the option of a Schedule 1 application can often be overlooked. In fact, the provisions are in no way limited to ‘big money’ cases, it can be used by any parent who falls outside of the CMS jurisdiction and requires financial support for their child.

The court’s powers in a Schedule 1 case can include:

top-up maintenance (you must have a maximum maintenance assessment completed by the CMS first);

payment of school fees;

lump sum(s);

a “carer’s allowance” – this may be used to cover paying for childcare, petrol for taking the children to school and extra-curricular activities etc.; and

the purchase or transfer of a property to the parent who cares for the child, which will be returned to the non-resident parent when the child completes their education or turns 18.

In situations where a child has a disability or exceptional circumstances apply, the Court can make orders for periodical payments and lump sums.

It is important to note that parents can make Schedule 1 arrangements between themselves with the help of a Family Law Solicitor and/or a Mediator.

What will the Court consider when deciding on a Schedule 1 application?

When the Court is asked to consider a Schedule 1 application, it will examine:

The financial resources available to both parents;

Additional responsibilities, for example, other children outside the relationship; Any disabilities of the subject child;

The financial needs of the child;

The standard of living and original choices that were made for the subject child – for example, private school, a large extra-curricular schedule, overseas excursions etc.

Both parents must provide full and frank financial disclosure.

The Court’s overriding consideration is ‘are the needs of the child being met?’ rather than what is necessarily fair or equal.

Can a Schedule 1 application extend to other maintenance provisions that do not concern the child?

In the recent case of CA v DR [2021] EWFC 21, 2021 WL 00878551] the Family Court held that a Schedule 1 claim for child maintenance by an unmarried mother could not extend to funding a personal pension for the mother or funding the build-up of savings from child maintenance payments to provide for the mother’s ongoing needs after the child’s financial support ended. Mrs Justice Roberts quoted Lord Justice Macur in Re A (a child) [2014] EWCA Civ 1577 at paragraph 19:

“The literal or purposive interpretation of Schedule 1 does not permit [..] by the back door, financial provision and compensation for the carer beyond that element attributable to the care of the child during his minority, or other determined duration of dependency. There is no established authority to the contrary. The judgment of Lady Hale in Gow v Grant [2012] UKSC 29, [2012] 3 FCR 73, at paragraphs 44 – 56 which urges reform of the law to re- balance the financial consequences of relationship breakdown in cohabitation, makes this clear, as does the prevailing case law on this point…”

Final words

Schedule 1 provides an alternative route for unmarried parents seeking additional child maintenance payments where the non-resident parent’s income exceeds the CMS jurisdiction, and/ or where they are based outside of the UK. Instructing an experienced Family Law Solicitor will ensure your interests are protected and you achieve your objectives when making the application.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about child maintenance orders and Schedule 1 claims, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.