Family · mother in C v C (Jersey) T he Privy Council decision in C v C (Jersey) [2019] concerned a...

Family law journal

www.lawjournals.co.uk March 2020 • Number 194

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Editor: Geraldine MorrisManaging editor: Lucy JefkinsContent development: Chloe Hemmett-Fuller, Claire Slater, Edmund Racher, Ellice Wray, Leigh Rose, Ryan Smith, Stephanie Nash, Tobias WhatleyEditor-in-chief: John PritchardConsultant editors: Douglas Alexiou (Alexiou Fisher Philipps), Sandra Davis (Mishcon de Reya), Suzanne Kingston (Mills & Reeve)Advertising enquiries to: James Air on 020 7396 5636Subscription enquiries to: Subscriptions department, Family Law Journal, 188 Fleet Street, London EC4A 2AGTel: 020 7396 9292 Fax: 020 7396 9300E-mail: [email protected] ISSN: 1472-4944

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Contents Family Law Journal

Jurisdiction: suffer the consequences Page 2James Davies looks at the implications of reciprocity in cross-jurisdictional cases and the need to consider the longer-term impact of an application

Marriage: inflexibility and injustice Page 5Kate Taylor argues that the narrow requirements for a marriage to be recognised as valid are a cause for concern

In practice: the winds of change Page 8Suzanne Todd examines family law developments during the millennium so far and what the future holds

International focus: a fair comparison Page 12Caroline McNally and Catherine Tso set out key considerations in private children law proceedings in Hong Kong

Remarriage: like chalk and cheese? Page 16Antonia Barker and Kate Williams outline the differences between the impact of remarriage when compared with cohabitation on periodical payments orders and remedies available to recoup an overpayment of maintenance

Financial provision: stemming the tide? Page 19Sarah Dodds discusses whether financial orders after an overseas divorce are now more restricted, or simply continue to be a remedy only available in limited circumstances

Nullity: clear intentions Page 22Katie Male considers the implications of the status of a marriage as to the financial remedies available and the circumstances in which the court may show flexibility

2 Family Law Journal March 2020

Suffer the consequences

James Davies is a legal director at Blake Morgan LLP, which acted as Privy Council agent for the mother in C v C (Jersey)

T he Privy Council decision in C v C (Jersey) [2019] concerned a child born in 2003 whose

parents were unmarried. It also involved the countries of Mauritius, Latvia and Jersey. It provides useful guidance on cases involving more than one jurisdiction and the impact that comity between the courts will have as to the remedies available to a party where an order has already been made in another country.

BackgroundThe parties had met in Latvia in 2000. Within two months the male party (for convenience referred to in this article as the father, although as will be seen, paternity was in dispute) had purchased a property for the female party (the mother) and had paid for its renovation. Both parties agreed that from 2000 onwards they had engaged in a sexual relationship during the man’s visits to Latvia. Beyond that, it is fair to say that the parties agreed on very little. This included the time during which their sexual relationship continued. This difference of opinion, somewhat unhelpfully, straddled the very period during which the child was conceived.

When the child was born in Latvia, his mother registered his birth and recorded on his birth certificate the name of a man with whom ‘she may have had a sexual relationship’ as the child’s father. In 2005 the parties resumed their relationship. They became engaged to marry and even entered into a pre-nuptial agreement but the marriage never took place.

The involvement of LatviaIn 2006 the father had applied to the Latvian court for a declaration

that he was the child’s father and to allow him to be registered on the birth certificate as the father in substitution for the man previously registered. In his application the father insisted that he was the child’s ‘true natural father’ (‘natural father’ being the terminology used in Latvia, for simplicity the term ‘biological father’ will be used hereafter). This application was supported by both the mother and the previously registered father. Unsurprisingly, the Latvian court granted the application.

In 2008, the mother and the child moved to live in Jersey with the father. Their relationship broke down in 2010, with the mother moving to Latvia with the child. In time, the mother later moved with the child to Mauritius, where she subsequently married another man.

In 2011 the mother made an application to the Jersey court for the father to make financial provision for the child. His reaction was to apply to the Latvian court to annul the registration of paternity that he had applied for himself in 2006.

To be successful, the Latvian court required him to first prove that he was not the child’s biological father and secondly that his earlier claim of the child’s paternity was a result of a mistake, fraud or duress. Moreover, his application had to be made within two years of his discovery of the circumstances which prevented him being the father. In 2012 his application was dismissed. The court held that he had failed to prove that he was not the child’s biological father. It also believed that he had not established the necessary requirement for fraud

Jurisdiction

‘The Privy Council examined the authorities relating to public policy precluding the recognition of judgments of a foreign court and noted that reliance on reasons of public policy should be exercised with “extreme reserve”.’

James Davies looks at the implications of reciprocity in cross-jurisdictional cases and the need to consider the longer-term impact of an application

Family Law Journal 3

Jurisdiction

March 2020

etc as to his 2006 application. Nor, said the court, had he satisfied the two-year deadline.

In the court’s consideration of the father’s application, the child’s mother had given oral evidence. She confirmed that he was not the biological father but also insisted that he knew that he was not long before he applied to be registered as the father in 2006. Nor, she said, was he ever misled into believing that he was. The Latvian court struggled with the evidence of both parties, as in 2006 both had said that he was the child’s father. Further, in his application for annulment he said he had believed that he was the father until 2011. Thirdly, the court was missing the DNA evidence, despite its repeated invitations to the father’s lawyer to obtain it, which would have resolved the paternity issue at least without question.

The father appealed but the appeal court subscribed to the reasoning of the district court. He appealed that decision but failed on the basis that there was no point of law of general public importance as required. The father then ceased making payments which he had previously been making voluntarily for the child.

Enter the Jersey courtsIn the meantime, the mother’s Jersey application had been adjourned to await the views of the Latvian court. It was therefore revived. It should be said that the mother also filed a claim in the district court of Latvia for the sole custody of the child. At an early hearing of that application, a lawyer acting on behalf of the

father made it plain that if the mother withdrew her application in Jersey for financial provision, the father would not contest the application for sole custody.

Undeterred, the mother continued with her Jersey application. In the

substantive hearing, the lawyer acting on behalf of the father accepted that, because of his continuing registered paternity in Latvia, he was a parent for the purposes of Jersey law, liable in principle to make financial provision for the child. The law in Jersey in this respect is very similar to the equivalent law in England and Wales, in that it empowers the court to order that a parent of a child make financial provision for a child’s benefit.

In light of the orders made by the Latvian court, the Jersey court held that the father was a parent for these purposes and ordered him to pay the sum of £5,000 per month to the mother for the benefit of the child. Once the Jersey application had been heard, and while the court’s draft judgment was under consideration, the father appointed a new lawyer who raised a new point on his behalf. This was, simply, that in the light of both parties agreeing that he was not the biological father, it was not open to the Jersey court to make an order for financial

provision. This argument failed and continued to fail throughout the Jersey appeal process.

The problem for the Privy CouncilThe father then appealed to the Privy Council. The Privy Council is made

up of justices of the UK’s Supreme Court who, sitting as a board, hear appeals from certain limited foreign countries including Jersey. The Privy Council was focused on the Latvian judgment and whether the Jersey court was right to recognise the court’s order as determining the issue of the child’s paternity for the purposes of proceedings in Jersey. This raised issues of private international law which would similarly apply in England and Wales.

First, the Privy Council established that there were no decided cases in either England and Wales or Jersey on the subject of whether it was required to recognise a foreign declaration of paternity. It did refer to two decisions of the Court of Appeal in England and Wales as to, respectively, a person’s legitimation and the recognition of adoption in foreign territories. While the Privy Council was prepared to contend that these were different considerations in nature from the ‘conclusion of biological fact’ which

The court was obliged to recognise the foreign order, in this case made by the courts of Latvia,

about the child’s paternity.

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4 Family Law Journal

Jurisdiction

March 2020

was the issue of paternity, it found itself assisted by these decisions.

The first, relating to legitimation, was Re Goodman’s Trusts [1881], which was decided prior to legitimation being enabled under the law of England and Wales in 1926. The Court of Appeal in that case had cause to examine the law’s perspective in relation to the Dutch potential inheritor on an intestacy and determined that the legitimacy of an individual depended ‘everywhere’ on the law of the country of their origin.

In a similar vein, Re Valentine’s Settlement [1965] confirmed a principle from an earlier decision in Travers v Holley [1953] that any decision made by a foreign nation, in circumstances where the court in England and Wales would have felt that it would have had jurisdiction to make that decision, should be respected. The scenario in that decision, explained by Lord Denning MR, concerned adoption. He noted that at the time, the English courts would have claimed jurisdiction to make an adoption order if two circumstances were present: first that the adopting parents were domiciled in this country and second that the child was resident in this jurisdiction. By extension, he determined that comity of nations required the court to recognise an adoption order made by another country when the adopters were domiciled and the child was resident in that country.

This principle, known as ‘jurisdictional reciprocity’, was subsequently applied by the House of Lords to enable the recognition of a Czechoslovakian divorce decree in Indyka v Indyka [1969]. Although foreign divorce recognition has been on a statutory footing since 1986 by virtue of the Family Law Act 1986 (FLA 1986), this decision represented the endorsement of the principle by the highest court.

How then was this principle to be applied in this case and did Jersey have the ability to determine paternity under its own law? The board found that it did not have that ability as a freestanding issue, although predictably it could do so as part of the adjudication of wider matters. To resolve this discrete issue, in the absence of its own such power, the board felt that Jersey would be likely to ‘look across the water’ to England

and Wales where there is an analogous statutory power under s55A, FLA 1986 enabling an application for a declaration as to parentage if either the putative parent or child were either domiciled or had been habitually resident in England and Wales for one year. Accordingly, if the father, who was both domiciled and habitually resident in Jersey, had applied to the English court in respect of a child who was domiciled or habitually resident in England and Wales, the English court would have had jurisdiction (para 52).

So, what of the father’s paternity application to Latvia? Well at the time, the child was present, habitually resident and domiciled in Latvia. Unsurprisingly, perhaps, the board therefore felt that the Jersey court’s recognition of the Latvian declaration of paternity in 2006 was right, subject to any contrary reasons of public policy. The Privy Council examined the authorities relating to public policy precluding the recognition of judgments of a foreign court and noted that reliance on any such reason should be exercised with ‘extreme reserve’ (per Vervaeke v Smith [1983]).

Contrary to public policy?The father felt that there were such public policy reasons why he should not be held to the Latvian order: first, that the mother had fraudulently led him to believe that he was the father to cause him to apply for the declaration and second he objected to the Latvian prohibition on annulling the apparently incorrect registration at any time more than two years after the discovery that it was false. The father argued that this meant that the ability to identify a child’s true parent was blocked by a rule which was little more than procedural.

The father failed on the first ground because this was an allegation he had made to the Latvian court in 2011. The Latvian court specifically rejected the argument then and accordingly the Privy Council felt obliged to follow its conclusion.

As regards the time-limit question, the board was concerned that this was only one of three reasons why the father’s desire to annul the Latvian court’s order had failed. In any case, the Privy Council was conscious that the European Court of Human Rights

had already determined in Kautzor v Germany [2012] that it was not a breach of a party’s human rights for ‘rules for ensuring legal certainty and finality in family relations’ to be upheld.

Accordingly, the Privy Council decided that the Jersey court had not been required to decide for itself whether the father was in fact the child’s biological father. Rather, the court was obliged to recognise the foreign order, in this case made by the courts of Latvia, about the child’s paternity. It took the view in any case that the Latvian order was eminently reasonable but that it was not for them or any other foreign court to assess the reasonableness of another court’s decision. Or, as the board’s decision eloquently put it:

… recognition of a foreign order under private international law does not depend on any arrogant attempt on that court’s part to mark the foreign court’s homework.

Conclusion Whatever the truth of the parentage in this case, it is clearly important for anyone who considers that they may be the parent of a child to be careful, cautious and deliberate in applying to a court, wherever that may be, for their status to be legally recognised. If their application is successful then this decision makes clear that certainly the courts in this jurisdiction and of its territories will recognise such judgments on the issue of paternity. This is the principle of jurisdictional reciprocity in action and which compels such a judgment to be recognised, subject to contrary reasons of public policy which are notably rare. n

C v C (Jersey) [2019] UKPC 40Re Goodman’s Trusts (1881) 17 Ch D 266Indyka v Indyka [1969] 1 AC 33Kautzor v Germany [2012] ECHR 516Travers v Holley [1953] P 246Re Valentine’s Settlement [1965] Ch 831Vervaeke v Smith [1983] 1 AC 145

Family Law Journal 5March 2020

Inflexibility and injustice

Kate Taylor is a solicitor at Vardags

T he decision in Akhter v Khan [2018] where a nikah ceremony was recognised as creating a

valid marriage under English law was welcomed by reform groups and Muslim women alike, but the impact of this decision has perhaps been overstated. Williams J approached the case with reference to the specific factual matrix and sought to balance the competing objectives of the law to lend credence to his more flexible interpretation of s11, Matrimonial Causes Act 1973 (MCA 1973), but the decision is not authority for all nikah ceremonies that take place in England and Wales to be accepted as void marriages. It should be noted also that at the time of press, this decision was being appealed.

Factual matrixIn Akhter the parties met and undertook their nikah, which is an Islamic marriage ceremony, in 1998. They had met twice before their nikah ceremony and had discussed that a walima, or marriage banquet, and a civil ceremony were to follow their religious ceremony. It was clear from the wife’s evidence, which Williams J found to be both detailed and methodical, that she would not have agreed to the nikah ceremony without the assurance from the husband that a civil ceremony would follow. The husband denied ever being asked to undertake a civil ceremony, but Williams J was critical of his evidence on this point and did not accept that the wife would have agreed to this.

Despite not undertaking the civil ceremony, the parties lived together as a married couple for 18 years and had four children together. They were treated as validly married for nearly six years while living in Dubai and

held themselves out to the world as husband and wife.

Williams J accepted that the wife had approached the husband to request a civil ceremony, and further that the husband was ‘obviously dishonest’ on a number of matters. He concluded that the husband was likely to have been asked to register the marriage but chose not to do so as there would be no benefit to him, indeed quite the contrary, as by denying the wife the civil ceremony she was promised, the husband denied her the financial rights that she would have been entitled to as a result of a long marriage.

In evidence, the wife referred the court to the husband’s treatment of her throughout their 18-year marriage, which saw her subject to various forms of abuse and intimidation, concentrated mostly on situations where she had requested that a civil ceremony be arranged. This began in 2000, when the husband smashed a chair following a discussion with the wife about registering their marriage, and ended in August 2016, when she applied for a non-molestation order.

Power dynamics and cultural issues Arguments as to power dynamics and cultural issues are of course inextricably linked in Williams J’s judgment and indicative of a larger problem which pervades the discussions around religious ceremonies and their capacity to be treated as void marriages in England and Wales. There is an assumption, and an admittedly powerful argument, that the autonomy of the parties should be respected above all things, and that those couples who do not choose to enter into a civil ceremony following their religious ceremony had no intention to be

Marriage

‘There is an assumption, and an admittedly powerful argument, that the autonomy of the parties should be respected above all things, and that those couples who do not choose to enter into a civil ceremony following their religious ceremony had no intention to be considered parties to a void marriage.’

Kate Taylor argues that the narrow requirements for a marriage to be recognised as valid are a cause for concern


Marriage

March 2020

considered parties to a void marriage. It follows that the court should not presume to find a status in these relationships that simply was never intended.

This assumption is however blind to the power dynamics present in

some of these relationships, which can render one party stuck with a status which isn’t quite what they had been promised and with no available remedy. Many couples enter into the religious ceremonies on the presumption that a civil ceremony would follow, as was the case with the wife in Akhter.

Williams J identified that once the nikah ceremony had taken place, the wife’s bargaining power in respect of the civil ceremony diminished and matters had simply gone too far for her to be able to insist that a civil ceremony take place. As can be seen from her

evidence, when the wife did request a civil ceremony, she was met with a violent response. She was therefore trapped in an impossible situation: she could not leave the marriage without the husband agreeing to pronounce the talaq and she could not ultimately force him to enter into a civil ceremony either.

The lawSection 11, MCA 1973 provides that a marriage is void in circumstances where there is no valid marriage under the provisions of the Marriage Act 1949, where one party is already married, or in the case of polygamous marriages.

More specifically, a marriage is void where the parties are within a prohibited degree of relationship, either party is under the age of 16 and, more pertinently, the parties have married in disregard of certain requirements as to the formation of the marriage. Case law has developed to determine that a non-marriage can be found where there has been a complete disregard for all of the requirements.

Such requirements include a ceremony of some form, conducted in the presence of two witnesses and a registrar or authorised person, with a prescribed form of words and in a registered place of worship. All of the requirements, save for the location of the ceremony, were satisfied in Akhter. These marriages must be subsequently registered by way of a civil ceremony to become valid marriages and in the absence of this registration the marriage can be said to be void due to a failure to comply with a necessary formality.

The case law in this area has developed in a piecemeal fashion and is often inconsistent in approach, with a tendency to impose a higher standard on marriages conducted in accordance with the Islamic and Hindu faiths than those of Western religions.

For example, in Gereis v Yagoub [1997] the court deemed the marriage to be void for non-compliance as no notice was given to the registrar, the parties failed to undergo the civil ceremony and their church was not registered as a place of worship. In contrast, in Gandhi v Patel [2002], the court found that there was no attempt for the Hindu ceremony to be an English marriage and it was therefore a non-marriage, where the ceremony took place in a restaurant before a Hindu priest and the parties failed to give notice to the registrar. Similarly, in El Gamal v Al Maktoum [2011], the court deemed the marriage to be a non-marriage, where the parties had married in secret, at a flat, but again

The law as it stands does very little to protect against a situation where a spouse intentionally avoids a marriage from becoming valid in an effort to protect their finances and avoid financial claims arising following a decree of nullity.

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Marriage

March 2020

in the presence of witnesses and an imam.

Failing to embark upon a civil ceremony does not appear to be determinative given the case law above, and the dicta in Asaad v Kurter [2013], which saw the court deem the marriage to be void even though it was not registered, and permission was not sought, on the basis that a ceremony had taken place which was capable of conferring the status of husband and wife, had the parties subsequently complied with the necessary formalities.

The law as it stands does very little to protect against a situation where a spouse intentionally avoids a marriage from becoming valid in an effort to protect their finances and avoid financial claims arising following a decree of nullity. This results in one party being unable to access their rightful share of the marital finances which they have helped to acquire and contribute to during the course of the relationship.

Arguments as to autonomy, or the clarity of the law, can often feel like a convenient public policy argument which leaves individuals in these situations at an extreme disadvantage at the hands of a cunning spouse. This vulnerability is exacerbated further by the ‘tick box’ approach to individual cases, which while helpful in this instance, fails to account for the fluidity that exists within modern marriage in England and Wales, where one size certainly doesn’t fit all.

Urgent need for reform In Akhter, Williams J undertook a review of the existing law in his judgment and applied it flexibly to the issues before him, perhaps to achieve a result which he thought to be desirable.

The issues in Akhter are of course not uncommon. The wife is surely one of many wives across England and Wales who have entered into marriages such as this, with the promise of a civil ceremony which never transpires. The case law demonstrates a disappointing reluctance to conclude that marriages conducted under Islam or Hinduism have resulted in void marriages, preferring to rely on defects which would otherwise not prove fatal in

cases involving religions which are perhaps more familiar to the courts. It is these relationships, where the promised civil ceremony does not take place, which are often subject to a greater power imbalance, which further makes the likelihood of

undertaking a civil ceremony that much more remote. This has created a predicament of real need for Muslim women in particular, who as a result of cultural or familial pressures feel unable to demand a civil ceremony following their nikah. In the eyes of their family and friends, the parties are married and the wife often has no choice but to continue in the marriage, in the absence of a formal civil ceremony and the legal rights that this attracts.

A 2017 study conducted by the Channel 4 documentary The Truth About Muslim Marriage, involving 923 Muslim women in Britain, illustrates just how widespread this issue is (see: www.legalease.co.uk/muslim-marriage-survey). 61% of those interviewed had entered into a traditional Muslim marriage ceremony but had not subsequently registered their marriage by way of a civil ceremony. Of these women, 75% expressed a wish for their marriage to be registered, but for various reasons were unable to do so. On divorce these women will be forced to pursue claims under the Trusts of Land and Appointment of Trustees Act 1996 through the civil courts, and make claims in respect of any children under Sch 1 to the Children Act 1989. These provisions, while helpful, cannot compare with the powers available to a judge under MCA 1973, where the starting point for a long marriage would be absolute equality.

These statistics indicate the inadequacies of the present approach to nullity, which demands that parties, in fulfilling relationships,

resulting in children and often lasting longer than most marriages, demonstrate to the court that their relationship had all of the frills and fixtures of a marriage as determined by a rigid checklist of features. This does a disservice to the spirit of

marriage, which is a relationship borne out of a love and a trust for your partner which under the current system is susceptible to manipulation for financial gain. It is clear from the decision in Akhter, and from the statistics demonstrating the extent of this issue, that the current state of the law is not doing enough.

ConclusionRegistration was the key in Akhter, and in other cases like it, as this step proves categorically that the religious marriage intended to accord to the laws of England and Wales. Under the present law it should not be determinative; this is not a black and white issue and the holistic approach should be favoured. Nonetheless, one would hope that going forward the court and the government will lend their voices and powers to the Council of Europe and to the Home Office, which have called for compulsory registration for all religious ceremonies to remedy this apparent defect in the law and tear down what must feel like an insurmountable barrier facing Muslim women at an incredibly difficult period of their life. n

There is a predicament of real need for Muslim women in particular, who as a result of cultural

or familial pressures feel unable to demand a civil ceremony following their Nikah.

Akhter v Khan [2018] WTLR 729Asaad v Kurter [2013] EWHC 3852 (Fam)El Gamal v Al Maktoum [2011] EWHC B27 (Fam)Gandhi v Patel [2002] 1 FLR 603Gereis v Yagoub [1997] 1 FLR 854


The winds of change

Suzanne Todd is a partner and head of Withers’ London family law team

T he 21st century has seen enormous changes in family law, both in terms of how the

law has developed but also in terms of working practices. The end of a decade is always a time of reflection, and an opportunity to look forward, especially so when it coincides with a government in its early stages, which may mean change is imminent.

This article looks back over just some of the key developments we have seen since 2000 and considers what more needs to be done over the next decade.

Key developments since 2000With regard to financial remedy cases, the new millennium kicked off with one of the most important cases in its history: White v White [2000]. The eradication of discrimination between breadwinner and homemaker was surely a magnificent start to the 21st century: where the assets exceed the financial needs of both parties, why should the surplus belong solely to the breadwinner? While this is of course a laudable principle, there are a myriad of complicating factors that mean in reality equality does not always result in fairness.

Twenty-first century financial remedy cases have therefore inevitably focused on the exceptions to equal division. Through those cases, and their particular factual matrices, we have established guidance for when sharing might not apply – for example where the assets are not matrimonial, where the marriage is short and parties are financially independent, or where one party has made a special contribution. Being involved in cases that test the boundaries and therefore develop as well as interpret the law is one of the great privileges of this

profession. When looking back over 20 years, cases such as Miller v Miller; McFarlane v McFarlane [2006], Sorrell v Sorrell [2005], Charman v Charman [2007] and Tchenguiz v Imerman [2010] hold a particular place in my collective team’s memory, providing as they did an opportunity not just to practise law but to help to shape it.

It is no coincidence that since the law has been interpreted to provide more generously for financially weaker parties, the desire for pre-nuptial agreements has increased. Another landmark decision for the 21st century was Radmacher v Granatino [2009], where the Supreme Court was clear that if parties entered into an agreement aware of its implications, they should expect to be held to its terms, unless it is unfair to do so. Thereafter we have seen a raft of case law regarding pre-nuptial agreements as to the extent to which such agreements have been upheld, the circumstances in which they would be disregarded and when they are influential but not determinative. The story that case law does not tell, is that the volume of pre-nuptial agreements has increased significantly – for all those cases where there is a dispute, there are many more where a pre-nuptial agreement has avoided the need for litigation. However, despite the Law Commission’s recommendations in 2014 (Matrimonial Property, Needs and Agreements Law Com No 343), we are still without much-needed legislation to provide clarity and certainty as to the legal consequences of such agreements.

Increased investigations and their implicationsWith the 21st century focus on sharing, there were also huge practical

in Practice

‘It is essential for family lawyers to have a bank of highly regarded therapists, counsellors and coaches to whom they can refer clients to ensure that they have the expert advice that they need.’

Suzanne Todd examines family law developments during the millennium so far and what the future holds


in Practice

March 2020

implications as the court’s role became more investigative – in order to truly share, it must first establish what is available. Developments in the law inevitably require adjustments to working practices and since 2000 lawyers have increasingly focused on both discovery and valuations, in order to ensure that there is sufficient accuracy and that an inquisitive court’s questions can be answered. This has led increasingly to greater forensic investigations in terms of accounts, remuneration packages, trust interests and tax implications.

With greater information, comes greater responsibilities, and more recently increasing concerns in relation to confidentiality, privacy and data protection have meant that lawyers must quite rightly be prepared to be scrutinised over their handling of others’ private information. The law has developed to protect privacy while ensuring the court receives the information required, or reserves the right to draw adverse inferences when it doesn’t.

Equality across the board The last 20 years have also seen some important changes in relation to private children proceedings and are another example of where societal attitudes and public opinion can influence family law. The statutory presumption that, unless the contrary is shown, the involvement of both parents in the life of the child concerned will further the child’s welfare was enshrined in the Children Act 1989 by amendments made in 2014. Although this is an important legislative change, for which there was great support particularly by those who felt that fathers’ roles were not given the respect that they deserved, it was nothing new in terms of how courts had always interpreted the law. What has had an impact, however, is the court’s increasing ability to enforce child arrangements orders to ensure that the children are able to spend time with each of their parents in the way that the court has prescribed. Similarly, the courts’ greater awareness and understanding of parental alienation cases has helped to protect those children whose relationship with one parent was in jeopardy. While there is still more to be done with these cases, great

progress has been made over the last 20 years.

The language used in relation to children proceedings has also changed – it sends a positive message to children and parents that these proceedings are not about parents’ rights but about what is best for the child. The change from ‘custody’

to ‘contact’ was certainly a huge improvement, but the move towards ‘living with’ and ‘spending time with’ is even more child-friendly and indicates the court’s child-focused approach.

During the century so far we have also seen a shift in approach in terms of applications for leave to remove. Soon after the turn of the century we had the Court of Appeal decision in Payne v Payne [2001], which had the unintended consequence of coming close to creating a presumption in favour of the parent wishing to leave the country. However, a decade later and the court’s approach was very different in MK v CK (children) (removal from jurisdiction) [2011], in which my firm acted for the father who argued against the mother’s application for leave to remove their two small daughters to Canada. The Court of Appeal was given the opportunity to review the guidance handed down in Payne, and was clear that the case had been misapplied by courts. Instead courts should take a more holistic approach, with the best interests of the child as the paramount consideration. Although this was a case without a primary carer, as both parents spent considerable time with the children, there was some confusion following MK v CK as to whether there should be a different approach if there is a clear ‘primary carer’. However, later case law suggests that the same holistic approach must be taken in all cases and that it is unhelpful to categorise them as ‘primary carer’ or ‘shared care’ cases. Again, this shows the

courts’ equal respect and recognition of both parents.

Children need a good listening toOver the last 20 years the court has become increasingly focused on the ‘voice of the child’. Whereas historically the court welfare officer, or sometimes the guardian, would be there to give the

child a voice, there has been a practical shift to a more direct approach. Courts are also increasingly keen to ensure that children know that their voice has been heard. Over the last few years judges are more likely to want to speak directly to children and, in some cases, as in Re A (Letter to a young person) [2017], write judgments to them directly.

In 2010 judges received guidance for meeting children who are the subject of family proceedings produced by the Family Justice Council and approved by the then president of the Family Division (see: www.legalease.co.uk/guidelines-judges), which helped to embed this new approach in judicial practice. The purpose of the guidance was to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives, and to give them an opportunity to satisfy themselves that the judge has understood their wishes and feelings and to understand the nature of the judge’s task.

Alternatives to litigationThe last two decades have seen significant changes to alternative dispute resolution options, now referred to in the Family Procedure Rules 2010 as non-court dispute resolution. Mediation of course predates the 21st century and my fellow partner Diana Parker was one of the five solicitors who established the Family Mediation Service in 1985. However it has become increasingly prevalent and since April 2014 it has

Although there are far more alternatives to litigation now than there were 20 years ago, conversely the

most obvious alternative – negotiation – is said to have demised.


in Practice

March 2020

been compulsory (save in exceptional circumstances) to attend a mediation information and assessment meeting (MIAM) before making most private family law applications.

My firm was also heavily involved in the implementation of family law

arbitration, by working closely with the Institute of Family Law Arbitrators. While family lawyers have been behind civil lawyers when it comes to arbitration, they have been making up for lost time since the inception of family arbitration in 2012. Family arbitration was expanded to include children in 2016. There are now more than 200 family law arbitrators.

NegotiationsAlthough there are far more alternatives to litigation now than there were 20 years ago, conversely the most obvious alternative – negotiation – is said to have demised. A significant reason for this is the removal of Calderbank rules (per Calderbank v Calderbank [1975]). Without that cost incentive, it is far harder to avoid polarised positions. In the days when it was possible to set out very clearly the likely cost to a client of taking a particular stand, it was much easier to take the emotion

out of negotiation and move things forward, concentrating on finding a solution that both parties could live with. That approach is much harder now as in the absence of relatively serious litigation misconduct, both parties know that the most

likely outcome is that the costs will come off the top.

Since 2000, we have had the formal introduction of the financial dispute resolution appointment (FDR). FDRs are an opportunity for settlement discussions with input from a judge who will then have no further dealings with the case. Increasingly family lawyers are also using private FDRs and when I spoke to members of my team about changes in working practice over the last 20 years, the use of, and implications of, private FDRs were considered crucial developments.

On the positive side, it allows for a more bespoke FDR which is run to a timetable convenient to clients and ensures an FDR judge with the luxury of time to prepare and concentrate on helping the parties to reach a resolution. However, while FDRs can be extremely useful they can have the unintended consequence of decreasing appetite for negotiation,

with parties preferring to wait to hear what the judge has to say. With the likely indication being somewhere in between the parties’ respective positions, there is an understandable inclination towards taking a more extreme position. This requires careful management of the client’s expectations as it will be necessary to negotiate away from that position post FDR. Any negotiations following the FDR are inevitably limited to the parameters of the judge’s indication.

TransparencyMy firm has always valued and respected our clients’ privacy: confidentiality and discretion are an important pillar of the service we offer, and we are lucky to have an in-house reputation management team at our disposal. The last 20 years have seen a significant shift in the transparency of the family courts. While there is obvious justification for this approach when it comes to public law children applications (as Sir James Munby has said that orders for the removal of a child are potentially the most draconian a court can make since capital punishment was abolished: see: www.legalease.co.uk/munby), for our clients (many of whom are in the public eye), the prospect of their family proceedings being played out in front of the media, or the subject of news reports, is appalling. This is another example of practice having to move with the times – being prepared, managing expectations and finding creative solutions is key. It is no coincidence that the options available outside of court have increased both in scope and in popularity.

The idea of a paperless society would have seemed outrageous 20 years ago, and yet now more and more court hearings take place without unwieldy bundles and back-breaking briefs.

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in Practice

March 2020

From newspapers to no papersTechnology has of course transformed almost all types of work life in the last 20 years and family law is no exception. The idea of a paperless society would have seemed outrageous 20 years ago, and yet now more and more court hearings take place without unwieldy bundles and back-breaking briefs. What happened to all the pink string?! However, while there is less paper, it is safe to say that there is probably a great deal more information. With the increased access to the internet and ever-expanding content, for example the increased reporting of family law judgments, there is no shortage of information to read about any aspect of family law. This can be overwhelming for clients and so an increasingly important part of our job is to address misconceptions or for a more 2019 phrase – debunk the fake news.

Changes to prioritiesWhen discussing how family law has changed over the last 20 years, a prevailing theme was client and solicitor well-being. While my firm has always had the best interests of its clients at the centre, there has been a much-needed shift in terms of how clients talk about their own mental health and well-being – a topic that they would have been much more likely to avoid 20 years ago. As a result in this sea-change in attitude, it is essential for family lawyers to have a bank of highly regarded therapists, counsellors and coaches to whom they can refer clients to ensure that they have the expert advice that they need. Family disputes are inevitably emotionally difficult and it is essential that clients receive the help and support that they need.

The rise in family therapy and help and support for children of parents separating is a highly beneficial development. Family lawyers have a great deal of responsibility for those that they are advising and guiding through sometimes highly volatile and turbulent litigation.

It is also now an important part of a law firm’s responsibility to help and support lawyers who work in these emotionally charged cases. Our associates receive training from experienced professionals, so as to

ensure their understanding of the importance of taking care of their own mental health and to know what steps to take to point clients in the right direction when they need it.

The futureFamily law has moved on a great deal in the 20 years since I qualified, but there is still some way to go in order to ensure a system that works well for everyone. In particular, I am hopeful that the new government ensures that both the Domestic Abuse Bill and the Divorce, Dissolution and Separation Bill become law as soon as is practically possible. I also remain hopeful that the law will be changed to protect the rights of cohabitants so that those who have not taken legal advice as to the implications of remaining outside of a marriage or civil partnership will have some protection in the event of separation.

A hugely negative change over the last 20 years is the reduction in legal aid for those who need it – it is now almost exclusively only available where there has been domestic violence and in public children cases, which leaves so many people without the advice they need to be able to effectively access our justice system. It is certainly a change for the worse that I believe should be rectified.

Another unfortunate step in the wrong direction is the increasing strain on the court system and it is well-documented that there are over-burdened court staff and judges, delays in the filing and serving of documents and huge waiting lists to get before a judge (even in an emergency). The courts’ increasingly stretched resources have serious implications in terms of access to justice and results in parties seeking alternatives to court – an option that is only available to those who can afford it. A hope for the future would certainly be a change to this situation.

My firm has always been involved in campaigns for changing the law as, being those with experience and understanding of the implications for people who are not protected by the law, we feel compelled not only to

do what we can with the law that we have, but also to strive to persuade those with the power to effect change.

Inevitably the biggest change in the next 20 years is likely to be something that we could not yet anticipate, but in discussions in preparation for this article, the most popular contenders are: the increased use of artificial intelligence, so that perhaps financial settlements on divorce will be the product of an algorithm rather than argument; increased legislation in relation to gender issues; and more digitalisation of the court process.

Change and development is what makes law so interesting and challenging, and whatever changes are made we will be sure to adapt so as to meet the ongoing needs of our clients. n

A hugely negative change over the last 20 years is the reduction in legal aid for those who need it.

Re A (Letter to a young person) [2017] EWFC 48Calderbank v Calderbank [1975] 3 All ER 333Charman v Charman [2007] WTLR 1151MK v CK (children) (removal from jurisdiction) [2011] EWCA Civ 793Miller v Miller; McFarlane v McFarlane [2006] UKHL 24Payne v Payne [2001] EWCA Civ 166Radmacher v Granatino [2009] EWCA Civ 649; WTLR(w) 2009-12Sorrell v Sorrell [2005] EWHC 1717 (Fam)Tchenguiz & ors v Imerman [2010] EWCA Civ 908White v White [2000] UKHL 54


A fair comparison

Caroline McNally (pictured top) is an executive partner and Catherine Tso is an associate at Gall, Hong Kong

W hile there are similarities as to many aspects of private children law in Hong

Kong and the approach in England and Wales, and some of the law in England and Wales may be applied as to certain issues, there are also notable differences. The terminology used differs from England and Wales and resembles instead the pre-Children Act 1989 terminology. In addition, there are differences between the provision for a child of a marriage and those born to unmarried parents, again reflecting in part the position as it was in England and Wales pre-2003 as to parental responsibility in particular. This article will set out the key aspects of private children law in Hong Kong and the approach of the courts in such cases.

LegislationThere are a number of ordinances which together make up Hong Kong’s legislation in respect of all matters concerning children:

• Guardianship of Minors Ordinance (Cap 13) (GMO);

• Matrimonial Causes Ordinance (Cap 179) (MCO);

• Matrimonial Proceedings and Property Ordinance (Cap 192) (MPPO); and

• Separation and Maintenance Orders Ordinance (Cap 16).

The Hong Kong courts have the power to make orders for custody, care and control and access. Section 19, MPPO empowers the court to make such order as it thinks fit for the

custody and education of any child in any proceedings for divorce, nullity of marriage or judicial separation. For unmarried parents, the power of the court to make orders in relation to custody and access of a child is found in s10, GMO.

Jurisdiction Issues of custody, care and control and access are dealt with by the Hong Kong family court as part of the divorce proceedings. The court has jurisdiction where either party to the marriage:

• was domiciled in Hong Kong at the date of the petition/application;

• was habitually resident in Hong Kong throughout the period of three years prior to the date of the petition/application; or

• has a substantial connection with Hong Kong (s3, MCO).

In relation to children born outside marriage, the jurisdiction of the Hong Kong court will depend on the facts of each individual case. The GMO does not contain any explicit limit on the court’s jurisdiction. Section 26, GMO provides that the jurisdiction conferred on the court by the GMO shall be exercisable notwithstanding that any party to the proceedings is not domiciled in Hong Kong.

In deciding whether Hong Kong has jurisdiction, the court should be guided by the forum non conveniens principles, always bearing in mind that the interests of the child are of paramount importance. The question

international focus

‘Even if one parent is granted custody, that parent is not given absolute and independent authority to act without further reference to the non-custodial parent.’

Caroline McNally and Catherine Tso set out key considerations in private children law proceedings in Hong Kong


international focus

to be asked by the court is whether there is some other available forum, having competent jurisdiction, which is more appropriate for the trial of the action.

Custody, care and control and accessThe terms ‘custody’ and ‘care and control’ are commonly misunderstood by lay persons. In the Court of Appeal decision in PD v KWW [2010], Hartmann JA distinguished between the terms ‘custody’ and ‘care and control’ by comparing the nature of the decision-making required.

CustodyThe decisions made by a custodial parent are of real consequence in safeguarding and promoting the child’s health, development and general welfare. These decisions include:

• the child’s religion;

• whether the child should undergo a medical operation;

• what school the child should attend; and

• what extracurricular activities the child should pursue.

A parent vested with custody has the responsibility of acting as the child’s legal representative. However, there is a misconception that the parent who is granted sole custody ‘wins’ the right to make all the decisions in the upbringing of the child, and the parent who is not granted custody ‘loses’ the right to have any say.

Even if one parent is granted custody, that parent is not given absolute and independent authority to act without further reference to the non-custodial parent. A parent is always entitled to know and be consulted about major matters concerning the child. While the right to be consulted does not include a power of veto, it is nevertheless a substantial right. It is not merely a right to be informed, but a right to be able to confer on the matter in issue, to give advice and to have that advice considered. If the non-custodial

parent believes the course proposed by the custodial parent is not in the child’s best interests, they may apply for the matter to be determined by the court.

Care and controlThe decisions made by a parent with care and control are more of

a day-to-day nature. The decisions arise from the physical control of the child and attending to the child’s immediate care. These decisions include what the child will wear that day, what the child may watch on television, when the child will go to bed and how to impose appropriate discipline.

AccessAccess means the time that a parent has contact with the child. Access may be supervised or unsupervised (supervised access is usually ordered in cases where there are concerns about the safety of the child) and defined or undefined (defined access is where the days and times of contact are specified). Access may also include staying access, which means the child can stay overnight with the parent in Hong Kong or on holiday outside Hong Kong.

As Hartmann JA said in PD v KWW, when a court awards care and control to one parent and rights of access to the other parent, the court is effectively awarding a form of shared care and control. This is because when a child has ‘access’ with a parent, particularly staying access, that parent assumes care and control of the child when the child is in their physical custody.

There have been calls for reform in Hong Kong and the introduction of a joint parental responsibility model which emphasises both parents having common responsibilities for the upbringing and development

of their child, however to date there has not been any change in the legislation.

Factors to be considered by the courtThe best interests of the child, and not the authority of the parents, are the court’s paramount consideration.

In Gillick v West Norfolk and Wisbech Area Health Authority [1985], Lord Fraser said:

… parental rights to control a child do not exist for the benefit of the parent. They exist for the benefit of the child and they are justified only in so far as they enable the parent to perform his duties towards the child.

In deciding questions of custody or the upbringing of a child, the Hong Kong court must follow the principles set out in s3(1), GMO. This includes considering what is in the best interests of the child, including giving due consideration to:

• the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

• any material information including any report of the director of social welfare available to the court at the hearing.

The term ‘best interests’ is not defined. This gives the court flexibility to look into all the welfare issues concerning the child in the particular circumstances of the case. Section 3, GMO is commonly referred to as ‘the welfare principle’, as prior to the amendment of s3, GMO in April 2012, the court was required

When a court awards care and control to one parent and rights of access to the other parent,

the court is effectively awarding a form of shared care and control.


international focus

to have regard to the welfare of the minor as the first and paramount consideration.

In applying the welfare principle, the Hong Kong family court has consistently adopted the matters

set out in s1(3), Children Act 1989, ie the relevant legislation in England and Wales, with modifications to suit local circumstances. The matters include:

• the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding);

• the child’s physical, emotional and educational needs;

• the likely effect on the child of any change in their circumstances;

• the child’s age, sex, background and any characteristics of the child which the court considers relevant;

• any harm which the child has suffered or is at risk of suffering; and

• how capable each of the parents,

and any other person in relation

to whom the court considers the question to be relevant, is of meeting the child’s needs.

This list is commonly referred to as the ‘welfare checklist’. In 2012, the Hong Kong Court of First Instance endorsed the practice of making use of the welfare checklist in H v N, with three caveats:

• absent statutory amendments, it is not compulsory to have regard to the welfare checklist and it is a matter for the judge to decide whether to or how to make use of the welfare checklist – a judge may pick some of the factors on the checklist which are relevant to the case and so long as the judge’s decision is demonstrably in the best interests of the child, they cannot be criticised for not expressly applying the checklist, or not going through all the factors one by one;

• when applying the checklist, judges are not subject to the

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There have been calls for reform in Hong Kong and the introduction of a joint parental responsibility model which emphasises both parents having common responsibilities for the upbringing and development of their child.


international focus

laborious necessity of expressly relating their findings in every case to its specific provisions one by one; and

• the welfare checklist is not meant to be exhaustive and judges should, and are entitled to, have regard to all other relevant factors even if they are not on the list.

Involvement of both parentsIn the past, there were preconceptions as to the role of a mother and father in raising their child. The traditional view was that the mother should care for the child, especially a young child, and the father should provide financial support. These views are obsolete.

Nowadays, s3(1), GMO puts parents on an equal footing and any role or gender discrimination is not permissible, subject to the position where a child is born outside marriage (explained below). This reflects the shift in gender stereotypes and recognition that the long-term best interests of a child are best protected if both parents continue to be involved in the child’s life.

In situations where a child is born outside marriage, s3(1), GMO grants the mother the same custodial rights and parental authority over the child as she would have if the child was born within marriage. However, the father does not automatically have these rights and authority, and will need to make an application to the court under s3(1)(d), GMO for a court order granting him some or all of the rights and authority that the law would allow if the child was born within marriage. The court seeks to not discriminate against children born outside marriage and applications will be treated the same as if the parents had been married.

Children dispute resolution pilot scheme A pilot scheme for dispute resolution in children cases was introduced in October 2012. The aim of the scheme is to support mothers and fathers so that they are able to effectively parent their children following separation or divorce. The intention of the pilot scheme is to encourage parents to resolve their

disputes quickly in a less adversarial atmosphere. The process prescribed in Practice Direction 15.13 (see www.legalease.co.uk/pd-1513) is mandatory.

After the petition and supporting documents are filed at the Family Court Registry, and it is clear that

there is a dispute over the child, the court will direct a children’s appointment (usually heard together with the first appointment which is fixed when there is a dispute on finances).

Fourteen days before the children’s appointment, or otherwise as directed, each parent should file at court and simultaneously exchange the children’s form (Form J) which is designed to help the parties and the court determine the best arrangements for the child. Form J requires each parent to state, inter alia, their background information and that of the child, the child’s current living arrangements, schooling and health, the parent’s finances and the parent’s proposals for future parenting arrangements. Form J was specifically designed to enable the court to have all the relevant information about a child and to avoid unhelpful commentary and allegations.

At the children’s appointment, the court will make a direction for any reports to help decide what arrangements are in the best interest of the child. Usually the court calls for a social welfare report, which is prepared by a trained social worker (also called the welfare officer).

The welfare officer is the ‘eyes and ears’ of the court and they will interview all relevant people, including the parents themselves, the child, and other people who have regular contact with the child. The welfare officer will also observe how the child interacts with their carers. The welfare officer then makes a

recommendation to the court based on their findings from the interview and observation. The welfare officer’s recommendations carry substantial weight, although the court is not bound by the recommendations.

The court may also call for other expert reports, such as from a child

psychologist in cases where the child demonstrates disturbed behaviour.

Children’s dispute resolution hearing The jewel in the crown of Practice Direction 15.13 is the children’s dispute resolution hearing at which the judge will act as a conciliator and try to help and encourage the parties to reach a settlement. There is a high incidence of cases settling either at or shortly after the children’s dispute resolution hearing.

The judge will give their views on each parent’s proposed care arrangements and will also give indications as to what court order would be made if the case proceeds to trial. The children’s dispute resolution hearing is not privileged, and the same judge will hear the matter at trial if settlement is not reached. Therefore, anything said at that hearing will be admissible at trial.

Mediation At all times, the parties have the option of mediation to try to resolve their disputes and are actively encouraged by the court to consider alternative dispute resolution options, including child-inclusive mediation if appropriate. n

Gillick v West Norfolk and Wisbech Area Health Authority & anor [1985] UKHL 7H v N [2012] 5 HKLRD 498PD v KWW [2010] 4 HKLRD 191

In situations where a child is born outside marriage, s3(1), GMO grants the mother the same custodial

rights and parental authority over the child as she would have if the child was born within marriage.


Like chalk and cheese?

Antonia Barker (pictured top) is a senior associate and Kate Williams is a solicitor at Vardags

I f a first divorce was not enough to put someone off remarrying, then the prospect of losing spousal

maintenance might be. Those who have formed a new relationship subsequent to their divorce, and who have the benefit of knowledge of the provisions of s28(1), Matrimonial Causes Act 1973 (MCA 1973), might choose to delay marriage and settle for cohabitation instead in a bid to cling onto their periodical payments, as while s28(1) allows the payer to cease making periodical payments to their former spouse on the latter’s remarriage, there is no comparable statutory provision for when the recipient cohabits with a new partner.

This article will look at the courts’ approach to the cohabitation of a recipient spouse, as opposed to remarriage; the issue of whether the legislative provisions still reflect societal norms; and when repayment of periodical payments, either as a consequence of remarriage or a change in circumstance such as cohabitation, may be sought. References to remarriage may be taken to also include the formation of a subsequent civil partnership.

Conflicting viewsThere is an obvious tension in the legislative position. On the one hand, it is surely unjust for a paying party to fund what might be, in all but name, the effectively married life of their former spouse. On the other, if the recipient of periodical payments does not remarry, they will not acquire a right to claim financial relief from their cohabitant

in the event of that relationship’s demise.

The current compromise is to allow for cohabitation to potentially be a relevant factor, insofar as it may reduce the financial needs of the payee and, therefore, potentially justify a reduction in periodical payments based on an assessment of the contributions the cohabiting partner ought to make.

What is cohabitation?One person’s definition of cohabitation may differ to that of another, and enforcing any cohabitation clause could prove difficult. In Kimber v Kimber [2000], the wife had been living with her new partner in the bed and breakfast business she ran, until her former husband told her he would cease periodical payments as a result. The wife promptly moved her new partner out of the property.

In that case, HHJ Tyrer sought to provide some guidance as to the relevant factors and suggested that considerations include whether the couple:

• live together in the same household;

• share their daily life;

• have stability and a degree of permanence in their relationship;

• run their finances jointly;

• have a sexual relationship;

• have children;

• show an intention and motivation to cohabit; and

reMarriage

‘The current compromise is to allow for cohabitation to potentially be a relevant factor, insofar as it may reduce the financial needs of the payee.’

Antonia Barker and Kate Williams outline the differences between the impact of remarriage when compared with cohabitation on periodical payments orders and remedies available to recoup an overpayment of maintenance


reMarriage

• would be considered as cohabiting in the opinion of a person with normal perceptions.

The judge came to the conclusion that a reasonable person would have considered the couple to be cohabiting on the basis of their intermingled finances, the division of daily household chores, continued sexual relations and the fact that they would have continued to live together had the husband not stopped making the payments.

However, while the Kimber checklist is a helpful one, insofar as it reminds us that there are a variety of relevant factors in determining whether there is cohabitation, rather than a simple question of whether the parties are living under the same roof, this is not an exhaustive list.

In X v Y (Maintenance Arrears: Cohabitation) [2012], HHJ Clifford Bellamy said (at para 85) that:

In the final analysis, making a finding that cohabitation is taking place is a matter of impression based on an assessment of all of the available evidence.

Cohabitation versus marriageWe now live in a society in which we have our first unmarried couple occupying No 10 Downing Street, and cohabiting-couple families are growing at a faster rate than married families. It can certainly be said that there is now less social pressure on couples to marry and it is common for couples to cohabit prior to marriage. This begs the question of whether cohabitation should be treated in the same way as marriage for the purposes of terminating spousal periodical payments.

The law might be considered slow to catch up with such shifts in societal norms. In Atkinson v Atkinson [1988], the Court of Appeal took the view that there could be no comparison between cohabitation and marriage. That view was affirmed by Thorpe LJ in Fleming v Fleming [2003], over a decade later, who said (at para 9):

I [do not] think that the decision of this court in Atkinson v Atkinson calls for re-visitation in the light of whatever social changes there may have been over the course of the last 15 years or so…

Equally, however, Thorpe LJ was clear that cohabitation, and its financial consequences, remain part of the overall circumstances of a case and must be taken into account.

Coleridge J took the opposing view however in K v K (Periodical Payments: Cohabitation) [2005], saying (at para 75) that the court has to ‘grapple’ with the question of whether cohabitation is ‘a different state of living’ to marriage such that it should attract different consequences as regards the cessation of periodical payments. On the adequacy of current legislation, he said (at paras 1 and 2):

In 1970, when the current ancillary relief legislation was first enacted, the concept of cohabitation (ie two unmarried adults living together in circumstances identical to marriage) was not even a glint in the politicians’ or parliamentary draftsman’s eye. As a living arrangement it simply did not happen. ‘To cohabit’ was barely a verb in the national vocabulary. It is, therefore, unsurprising that the statute did not address its implications and that the

duration of periodical payments orders was geared to remarriage. Indeed, the previous statute had included the same statutory cut off date.

In the 35 years since the enactment a social revolution has taken place. The concept of cohabitation is now as normal, commonplace and acceptable as marriage. At every level of society and amongst all adult age groups people cohabit without a second thought. It carries no social stigma whatever. Nor for that matter does the birth of children outside marriage…

adding (at para 87):

This is a troubling and messy area of the law and the current legislation enacted against an utterly different social fabric is not adequate to deal with it. The question is how far can the court go to redress the inadequacies of this somewhat superannuated legislation by applying it now in the contemporary context. Obviously, the impact of cohabitation can affect, potentially, both quantum and duration of an ongoing order…

and finally (at para 104):

I see no reason why nowadays courts should not order a termination on ‘cohabitation’ after a certain period. [Section 28(1), MCA 1973] by no means prohibits it and it would at least provide certainty for the parties. It would, I consider, better reflect modern mores and social behaviour.

The issue arose again before the Court of Appeal in Grey v Grey [2009], a case concerning the husband’s challenge in relation to orders for

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reMarriage

March 2020

periodical payments on the basis that the judge had failed to make proper findings of fact regarding the wife’s relationship with a new partner. At first instance, Singer J had considered himself bound by the approach of the Court of Appeal in Atkinson and Fleming, concluding that:

… change in this area must come from Parliament, or from a court with authority to make new law or to change the old.

The Court of Appeal, however, allowed the husband’s appeal. It determined that, while Fleming remained good law, and ‘sufficiently flexible to enable the court to do justice and to reflect social and moral shifts’, Singer J had been wrong in his failure to apply that authority in a manner which considered the financial consequences of the wife’s new relationship. Singer J subsequently assessed the new partner’s capacity to contribute to the wife’s household, and took it into account in assessing the appropriate level of periodical payments (Grey v Grey [2010]).

Reliefs available to the paying partySections 33 and 38, MCA 1973 offer relief to a paying party who has made periodical payments where it transpires that they were no longer required to do so, in the case of a change in circumstances (such as cohabitation) and remarriage respectively. Looking first at the more straightforward of the two sections, s38 MCA 1973 allows the payer to apply to the court to order the recipient of periodical payments to repay the sums received if they have remarried, and the payer had continued to make payments in the mistaken belief that they were still required to do so. This, at least, is easily capable of objective assessment.

Under s33, MCA 1973 a payer may apply to the court to vary or discharge a periodical payments order and for an order that the recipient of periodical

payments repay excess funds received, should it be shown that by reason of a change in their circumstances the recipient received payments in excess of what the payer should have been required to pay.

In X v Y, the court considered the question of discretion as to the quantum

of any such repayments. HHJ Clifford Bellamy suggested a number of factors to be taken into account, both for and against repayment. He considered the fact that in that case the consent order included cohabitation for a period of six months as an event triggering cessation of payments and that the husband had a new family to support to be of relevance, but arguments against repayment included the wife saying she could not afford a repayment and that she had already spent the money received from the husband. The judge came to the conclusion that the wife should repay £2,550 of the £4,550 overpaid by the husband.

ConclusionColeridge J in K v K was quite right in his assessment that the relevant legislation was ‘enacted against an utterly different social fabric’. In many ways, almost 50 years on from the enactment of MCA 1973, society effectively equates cohabitation with marriage. Why should financial support be provided to a former spouse if they are now cohabitating with a new partner in a de facto marriage? Potentially, this gap in the legislation can be exploited by those seeking to retain the financial support of their former spouse by putting off remarriage, while enjoying financial contributions from a new partner. Or as Coleridge J more eloquently put it in K v K (at para 4):

Can cohabiting recipients continue to have their cake and eat it by, perhaps cynically, refusing to remarry to avoid the automatic financial consequence of the cessation of an existing periodical payments order?

Ultimately, however, marriage is definite, while cohabitation is not. The choice to enter into marriage is an active decision to enter into a legal relationship, which is defined by statute and confers on the participants rights against one another for financial support. Cohabitation, in contrast, has an uncertain definition and it does not carry with it the formal obligations and consequences that marriage does. As such, it would not be appropriate for cohabitation to have the same automatic effect of the termination of financial provision as for remarriage.

For now, in some cases it may be advisable to include provision in the order for periodical payments to cease on the recipient cohabiting with a new partner after a prescribed time period has elapsed, but it is notable that the standard order financial remedy omnibus does not include provision for cohabitation to be a trigger event and such provision may not always be agreed or accepted by the courts. The difficulty remains, however, that where there is such a dispute, the matter is likely to be highly fact-specific and hotly contested. Given the complexities, as described above, which are inherent in even defining cohabitation satisfactorily, the costs of demonstrating to the court that there is, in fact, a cohabiting relationship, in order to achieve the downward variation or cessation of periodical payments, are likely to be significant.

With Downing Street’s current occupant being one who is volubly in favour of the concurrent having and eating of one’s cake, it may be that we can expect this issue to come under parliamentary scrutiny at some point. n

There are a variety of relevant factors in determining whether there is cohabitation, rather than a simple question of whether the parties are living under the same roof.

Atkinson v Atkinson [1988] 2 FLR 353Fleming v Fleming [2003] EWCA Civ 1841Grey v Grey [2009] EWCA Civ 1424; [2010] EWHC 1055 (Fam)K v K (Periodical Payments: Cohabitation) [2005] EWHC 2886 (Fam)Kimber v Kimber [2000] 1 FLR 383X v Y (Maintenance Arrears: Cohabitation) [2012] EWCC 1 (Fam)


Stemming the tide?

Sarah Dodds is an associate at Kingsley Napley LLP

T he decision in Potanin v Potanina [2019] provides not only a useful commentary on

the availability of relief under Pt III, Matrimonial and Family Proceedings Act 1984 (MFPA 1984), but also a helpful warning as to the duty of candour required when making an application without notice.

The wife had applied under Pt III, MFPA 1984 on the basis that, as a consequence of the husband wielding ‘wealth, power and influence’, the financial award she had been given by the Russian court on divorce did not meet her reasonable needs and the law in Russia had not been applied correctly. As is required for such applications, the wife initially made an application for the leave (permission) of the court which was granted at a without notice hearing. The husband then applied to set aside that grant of leave on the basis that the wife had misrepresented the outcome of the Russian proceedings and her connection to England and Wales.

Initial grant of leaveIt is established law that an applicant applying on a without notice basis has a duty to ensure that the court is made aware of all of the relevant facts. This obligation of full and frank disclosure is to the court itself, as it is imperative that the judge making the decision has all of the relevant information before them whether that information helps the applicant’s case or not (see Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011]). Cohen J highlighted in Potanin that it is essential that the applicant presents their case at a without notice hearing on a ‘warts and all basis’ (para 19).

Unfortunately for the wife, on the husband’s application to set aside the grant of leave, the judge found that she had misrepresented certain aspects of her case, including facts and the relevant Russian law. Indeed Cohen J found, among other things, that:

• the amount of the wife’s award in Russia was higher than she had stated;

• the impression she gave of her connection with England was greater than was justified; and

• the court had been misled as to the application of Russian law and was not given a complete picture of the litigation in Russia so as to put the application in context.

Cohen J also noted that while he had been directed to the appropriate law in the position statement filed on behalf of the applicant in advance of the without notice hearing, in particular the principles set out in Agbaje v Akinnoye-Agbaje [2010], he was not directed to the same in the oral submissions and as a result ‘did not properly consider the legislative purpose of [Pt III, MFPA 1984]’ when he granted the leave. He noted that had he been asked to address the relevant paragraphs of the skeleton arguments, he would have more particularly had in mind the following (para 54):

• the extent of the connection of the parties to England;

• whether or not the wife was attempting to use the proceedings as ‘a top-up’;

financial ProVision

‘Pt III, MFPA 1984 cannot be used to “top up” provision made in a foreign order to put it on par with what would have been awarded had the divorce been dealt with by the English courts.’

Sarah Dodds discusses whether financial orders after an overseas divorce are now more restricted, or simply continue to be a remedy only available in limited circumstances


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March 2020

• the interplay between the adequacy of the Russian award and the connection with England; and

• whether the wife had suffered injustice and/or hardship.

The judge felt that the misrepresentations were fundamental to the decision he had made to grant leave on a without notice basis, rather than merely minor ones that did not go to the substance of the decision. The application for leave therefore had to be considered once again, this time on notice.

Applicable lawIn addition to providing a useful reminder of the importance of candour when making an application without notice, the court in Potanin also considered the principles applied when determining an application for leave under Pt III, MFPA 1984. The purpose of the legislation, as indicated in a number of previous cases including Agbaje, is not to allow an applicant ‘a second bite of the cherry’, or to allow those with minor connections to this jurisdiction to take advantage of what is perceived to be a generous approach by the English courts.

The purpose of the legislation is instead, as Lord Collins said in Agbaje (para 71):

… the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a

foreign court in a situation where there were substantial connections with England.

Nevertheless, the legislation has been criticised for helping to enable ‘divorce tourism’ in big money cases, and it may be that the decision in Potanin will assist to stem the tide.

There are already limitations on applications under Pt III, MFPA 1984. Pursuant to s15(1)(a)-(b), MPFA 1984:

• either of the parties must be domiciled in England and Wales on the date the application is made, or was so domiciled at the time of the foreign divorce; or

• either party must have been habitually resident in England and Wales for a period of one year prior to the application or for one year prior to the date when the foreign divorce took effect.

Where the above requirements are not fulfilled, the courts in England and Wales are able to make more limited orders where one of the parties has, at the date of the application for leave, an interest in a property in England or Wales and that property was at some time during the marriage the matrimonial home (s15(1)(c), MFPA 1984).

In Potanin, the wife’s application was based on her habitual residence in England and Wales for a period of one year prior to her application. This was not disputed by the husband, however the wife’s connection to this jurisdiction was still relevant to the decision to grant leave.

When deciding whether to grant leave, the court must consider ss13 and 16, MFPA 1984 and first determine whether there is ‘substantial ground’ for making an application for an order (s13, MFPA 1984) before going on to consider the relevant statutory factors set out in s16, MFPA 1984.

In Agbaje, it was found that ‘substantial means solid’ and the threshold is higher than simply ‘a serious issue to be tried’. Lord Collins described the threshold (at para 33) as a:

… filter mechanism… to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse.

As part of its assessment, the court has to consider, pursuant to s16(1), MFPA 1984, whether it would be appropriate for an order to be made by a court in England and Wales. If it is not so satisfied, the application should be dismissed. Section 16(2) sets out the matters that the court should have particular regard to when considering whether it would be appropriate for an order to be made in this jurisdiction, ie:

• the connection the parties to the marriage have with England and Wales;

• the connection the parties have with the country in which the marriage was dissolved or annulled, or in which they were legally separated;

• the connection the parties have with any other country outside England and Wales;

It appears that it is not always sufficient to set out the law in a position statement or skeleton argument and that advocates should also direct the judge to the relevant law in oral submissions.

While the decision in Potanin was centred on an application under Pt III, MPFA 1984, the principles discussed within the judgment are applicable across the board when making a without notice application and of note for practitioners.

It should be made very clear to clients from the outset that they must come to court with ‘clean hands’ and practitioners should ensure that the judge is made aware of the relevant law at every stage. The duty of candour for applicants wanting the court to make a decision in their favour is high and it is in everyone’s interests to ensure that the application itself sets out all of the material facts. Any documents filed at court thereafter dealing with the relevant law, including counsel’s position statement, need to be crystal clear. Furthermore, based on the judgment in Potanin, it appears that it is not always sufficient to set out the law in a position statement or skeleton argument and that advocates should also direct the judge to the relevant law in oral submissions to ensure that it is being properly considered and applied.

Advising clients


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March 2020

• any financial benefit the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;

• in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

• any right the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and where the applicant has omitted to exercise that right, the reason for that omission;

• the availability in England and Wales of any property in respect of which an order under Pt III, MFPA 1984 in favour of the applicant could be made;

• the extent to which any order made under Pt III, MFPA 1984 is likely to be enforceable; and

• the length of time which has elapsed since the date of the divorce, annulment or legal separation.

In addition, s16(3), MFPA 1984 provides that in circumstances where the court has jurisdiction under the EU Maintenance Regulation (Council Regulation (EC) No 4/2009) and Sch 6, Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, SI 2011/1484, it cannot dismiss an application pursuant to s16(1), MFPA 1984 if that decision would be inconsistent with the requirements of the EU Maintenance Regulation and Sch 6, SI 2011/1484.

The wife sought to argue that s16(3), MFPA 1984 effectively disapplies ss16(1)-(2), MFPA 1984 in cases where there is a needs-based argument. That argument would mean that ss16(1)-(2)

would be irrelevant in any case with a maintenance element under Pt III, MFPA 1984 and sharing claims would be dismissed, but any claims based on needs would have to be allowed to proceed. Cohen J considered this position untenable and instead found that the application of s16(3) meant he was unable to dismiss an application for a needs-based claim (whether via capital or income) solely on the basis that the applicant lacked a connection to the jurisdiction, but that he could dismiss a claim based on the other factors set out in s16(2).

Decision Taking all of the above into account, on the facts of the wife’s case the judge found that there was no solid basis for making an award under Pt III, MFPA 1984 and dismissed the wife’s application for leave. The judge commented on the fact that the wife’s connection to England was limited. By way of example, she had not lived in this country before the divorce in 2014 and even after purchasing a property here, did not choose to live here full time. He stated that her connection with England and Wales was ‘both recent and modest’ and her application was:

… a classic example of a spouse whose background and married life was firmly fixed in her home country and who had no connection with England… seeking after the breakdown of the marriage to take advantage of what is a more generous approach to her claims than she has been able to achieve in her home country after the fullest possible use of its legal system.

Cohen J agreed with counsel for the husband that if the claim was allowed to proceed there would be ‘effectively no limit to divorce tourism’ (para 88).

The judge accepted the wife’s submission that the award she had received in Russia was ‘paltry’ by English standards, when taking into account the period of time for which the parties were married and wealth accumulated by the husband during the marriage (para 85). However, the judge reminded himself that the case law is clear that Pt III, MFPA 1984 cannot be used to ‘top up’ provision

made in a foreign order to put it on par with what would have been awarded had the divorce been dealt with by the English courts. Even when taking the weaknesses of the wife’s case out of the equation as to her connection with this jurisdiction, Cohen J considered that all of the other s16(2), MFPA 1984 factors weighed against allowing the application to proceed and that (para 90):

… it is not the job of the English courts to correct what might be thought to be the deficiencies of the legal systems of another country in the circumstances which are shown when the [s16(2), MFPA 1984] matters are analysed. It would be arrogant for this court to assume that England and Wales is the sole arbiter of fairness.

ConclusionIt has been suggested that the decision in Potanin will bring an end to ‘divorce tourism’, but it appears, in reality, to be a reiteration of the principles set out in previous case law which has, over a number of years, been increasingly restrictive for prospective Pt III, MFPA 1984 applicants. If an applicant was minded to take a punt and make an application before Potanin, then the chances are they would probably still take that chance now. Care should be taken however when considering and preparing an application, particularly when issuing without notice, and practitioners should be fully alive to the risks and advise their clients accordingly. A careful consideration of the strength of the applicant’s connection with this jurisdiction and whether, in all of the circumstances of the case, England and Wales is an appropriate venue, is imperative. This cannot be brushed under the carpet even if the jurisdictional requirements under s15, MFPA 1984 are fulfilled.

The wife in Potanin has appealed, so it is a case of watch this space. n

Agbaje v Akinnoye-Agbaje [2010] UKSC 13Obsession Hair and Day Spa Ltd v Hi-Lite Electrical Ltd [2011] EWCA Civ 148Potanin v Potanina [2019] EWHC 2956 (Fam)


Clear intentions

Katie Male is an associate at Boodle Hatfield

W ith the UK’s increasingly international population, some of whom may have

been married abroad or undertaken purely religious ceremonies in this jurisdiction, nullity, a once dry and dusty area of law, is attracting more interest and one might expect more practitioners to be troubled by this topic than have been in the past.

Void, voidable or invalid?A voidable marriage is a marriage that is treated as having existed until such time as a decree of nullity has been granted. A decree of nullity therefore acts to bring a voidable marriage to an end. The grounds on which a marriage is voidable are set out at s12, Matrimonial Causes Act 1973 (MCA 1973), and include, for example, non-consummation of the marriage, lack of consent to the marriage and one party to the marriage being pregnant by someone other than their spouse at the time of the marriage.

A void marriage is a marriage that is treated as if it had never taken place. A decree of nullity does not have any performative effect on a void marriage, as it simply confirms that the marriage never existed. Section 11, MCA 1973 provides that a marriage is void if:

• it is not a valid marriage under the provisions of the Marriage Acts 1949 to 1986, that is to say where:

• the parties are within the prohibited degrees of relationship;

• either party is under the age of 16; or

• the parties have intermarried in disregard of certain requirements as to the formation of marriage;

• at the time of the marriage either party was already lawfully married or a civil partner; or

• in the case of a polygamous marriage entered into outside England and Wales, either party was at the time of the marriage domiciled in England and Wales.

There is a third category of marriage which is simply invalid. Unlike a void or voidable marriage, the court has no power to grant a decree of nullity in respect of an invalid marriage.

In Hudson v Leigh [2009], Bodey J observed the inherent difficulty in establishing a definition of, or test for, a non-marriage, but suggested (at para 78) that consideration of the following factors was likely to be instructive:

Questionable ceremonies should I think be addressed on a case by case basis, taking account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance.

nullitY

‘Where a petitioner is able to prove that the marriage in question is voidable or void and therefore susceptible to a degree of nullity, they will have access to the whole range of financial remedies that are available to a spouse on divorce.’

Katie Male considers the implications of the status of a marriage as to the financial remedies available and the circumstances in which the court may show flexibility


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March 2020

The hypothetical example given by Bodey J was that of:

… a nervous and eccentric couple who wished to have a full dress-rehearsal of their wedding ceremony, so as to be sure that everything would go alright on the day…

which clearly would not create a valid marriage, even if, as in this case, the parties held a religious ceremony intending to follow that with a civil ceremony in England which then never took place and the guests believed they were witnessing a legal marriage.

Why does it matter?Where a petitioner is able to prove that the marriage in question is voidable or void and therefore susceptible to a degree of nullity, they will have access to the whole range of financial remedies that are available to a spouse on divorce. Where the court finds that the marriage is invalid ie a non-marriage, however, the petitioner will not have any entitlement to make a financial claim under MCA 1973 and will have to fall back on either the Trusts of Land and Appointment of Trustees Act 1996 or Sch 1 to the Children Act 1989, as appropriate. The categorisation of the marriage is therefore absolutely crucial to a petitioner, particularly in circumstances where the family assets are mainly held in the other spouse’s name.

Recent authoritiesThe distinction between marriages deemed voidable or void and those that are simply invalid has been explored in a number of cases over recent years. In many of these cases, the so-called marriage in question has been found to be invalid. See for example, Hudson as mentioned above, El Gamal v Al Maktoum [2011], Al-Saedy v Musawi [2010], Dukali v Lamrani [2012] and Galloway v Goldstein [2012].

However in the three most recently reported judgments turning on this distinction, the marriage in question has been held to be capable of annulment. This could, of course, be pure coincidence but some commentators have suggested that these recent judgments demonstrate a greater flexibility in the courts’

approach. These cases are considered in more detail below.

Asaad v Kurter [2013] The parties had a wedding ceremony in Syria, during which they exchanged rings and signed the marriage register, however they failed to register the marriage with

the Syrian authorities or obtain permission from the Ministry of the Interior (which was required as the husband was Turkish). The marriage was therefore of no legal effect in Syria. The parties subsequently travelled to Turkey and then to the UK. The wife was granted a spousal visa.

The wife issued divorce proceedings in this country, although she subsequently included a claim for a decree of nullity in the alternative. The husband sought a dismissal of the petition, asserting the ceremony had in fact been a ‘blessing’ and there had been no marriage.

It was clarified by a single joint expert during the course of proceedings that, while the concept of a ‘non-marriage’ does exist in Syrian law, the concept of a void or voidable marriage does not. A marriage will either be valid, where formalities have been observed, or invalid, for example where permission is required but it has not been obtained. Therefore the fact that the marriage was invalid in Syrian law was not in itself determinative of the marriage’s status in English law.

Moylan J held that the ceremony was not ‘so deficient’ as to constitute a non-marriage in English law. Both parties (and the relevant participants) knew they were participating in a marriage ceremony and the marriage was capable of being made valid, had the parties complied with the necessary formalities. The marriage was properly to be deemed void on the basis that it was ‘a marriage which [was] not valid as a result of a failure

to comply with certain of the required formalities’. The wife was granted a decree of nullity.

K v K [2016] The parties entered into a marriage ceremony at a Shia mosque in London in 1999. The wife had previously had an arranged marriage to a Mr Z in

1972 which was terminated by talaq in Pakistan in 1994. The husband had been married to a Mrs B in 1964, which marriage probably subsisted until Mrs B’s death in 2015. It was the wife’s case (denied by the husband) that the husband had told her he was divorced before the marriage ceremony in 1999. In any event, neither party sought to assert that the unregistered 1999 ceremony constituted a valid marriage.

The wife had severe doubt over the status of the 1999 marriage and, as a result, ceased sexual intercourse with the husband later in 1999. In 2002 the wife obtained a decree of khula in Pakistan (a recognition of a prior oral or unregistered talaq) in respect of her previous marriage.

The wife asserted that on 15 August 2003 the parties had a telephone conversation with an imam in Pakistan and that later that month they (independently) travelled to Pakistan where they had a marriage ceremony (a nikah) and were given a marriage deed. The husband denied this and argued the marriage deed was a forgery. The wife sought a decree of nullity in respect of the ceremony that took place in August 2003.

Faced with the diametrically opposed evidence given by the parties, Francis J preferred the wife’s account and found that both the telephone call and the ceremony had taken place. He criticised the husband for failing to bring an application under Pt 25, Family Procedure Rules 2010 to adduce expert evidence

Where the court finds that the marriage is invalid ie a non-marriage, the petitioner will

not have any entitlement to make a financial claim under MCA 1973.


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March 2020

to establish the authenticity of the marriage deed, if it was his case that it had been forged, and to seek witness statements from the two witnesses named therein.

With the help of expert evidence, Francis J found that the nikah in August 2003 did not create a valid

marriage in Pakistan because it was not registered and the husband was probably still married to his first wife. Nevertheless, having considered the factors set out in Hudson, Francis J said that the fact that the parties intended and believed that the marriage ceremony was valid was ‘highly material’ (para 39) and granted a decree of nullity.

Akhter v Khan [2018] The parties entered into a nikah ceremony in London in 1998. They agreed that this did not create a valid marriage in this jurisdiction and the wife said that she had expected the nikah to be followed by a civil ceremony.

In 2005 the parties moved to Dubai. The wife travelled on a spouse’s visa, for which the parties had to obtain a marriage certificate. The husband subsequently proposed taking a second wife, which the wife felt she could not accept.

In 2011 the wife moved back to the UK with the parties’ children. The husband said that this was when they separated, but the wife maintained that the husband had travelled to see them regularly until his return to the UK in 2014 and that the issue of a civil ceremony continued to be raised during this period.

The wife issued a divorce petition in 2016 and sought in the alternative a decree of nullity on the basis that the marriage was void within s11(a)(iii), MCA 1973.

Williams J accepted arguments made on behalf of the wife that the interpretation of s11, MCA 1973

required a consideration of human rights, concluding that a somewhat more flexible approach was appropriate ‘in particular to reflect the article 8 rights of the parties and the children’. He widened the starting point in relation to the interpretation of s11, quoting the analysis of Moylan J in

MA v JA [2012] (at para 93), and thereafter supplemented that on the basis of his conclusions in relation to the relevance of human rights, he advocated the following overall approach (para 94):

Unless a marriage purports to be of the kind contemplated by the Marriage Act 1949 it will not be within section 11. What brings a ceremony within the scope of the Act or at what stage the cumulative effect of the failures is to take the ceremony wholly outside the scope of the 1949 Act has to be approached on a case by case basis. When considering the question of a marriage the court should be able to take a holistic view of a process rather than a single ceremony…

and:

The court should take account of the various factors and features mentioned above including particularly, but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage including whether the parties had agreed that the necessary legal formalities would be undertaken; (b) whether it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed whether promises were made; (c) whether the three key participants (most especially the officiating official) believed, intended and understood the ceremony as giving rise to the status of lawful marriage; (d) whether the failure to complete all the legal formalities was

a joint decision or due to the failure of one party to complete them.

Williams J held that the parties had both understood they were embarking on a process which would include a civil ceremony. Their failure to do so was the result of the husband’s refusal, despite the wife’s continued requests. The nikah bore the hallmarks of a marriage and the parties lived as a married couple and indeed were treated as such in Dubai. It was held that the marriage was void within the scope of s11, MCA 1973. At the time of press, this decision was being appealed.

ConclusionWhile Williams J appeared to have moved the law on in Akhter, this cannot be taken to mean that every nikah ceremony conducted in this country without a subsequent civil ceremony will be susceptible to a decree of nullity. Each case will continue to require a forensic analysis of the facts.

Nevertheless, absent a successful appeal, it does appear to open the door for petitioners in cases with similar factual matrices to argue, for example, that an interpretation of s11, MCA 1973 should take into account the best interests of the children, who may suffer a disadvantage if the petitioner was barred from making a financial remedy application. It has therefore been seen as an example of the family court interpreting the law in such a way as to protect the neediest members of our society. n

In K v K, Francis J said that the fact that the parties intended and believed that the marriage ceremony was valid was ‘highly material’.

Akhter v Khan [2018] WTLR 729Al-Saedy v Musawi [2010] EWHC 3293 (Fam)Asaad v Kurter [2013] EWHC 3852 (Fam)Dukali v Lamrani [2012] EWHC 1748 (Fam)El Gamal v Al Maktoum [2011] EWHC B27 (Fam)Galloway v Goldstein [2012] EWHC 60 (Fam)Hudson v Leigh [2009] EWHC 1306 (Fam)K v K [2016] EWHC 3380 (Fam)MA v JA [2012] EWHC 2219 (Fam)

Contact [email protected] for more information

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