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Financial Provision

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  • The father appealed, on the basis that he was incorrectly treated as a "non-resident" parent for the purposes of s 3(2) of the Child Support Act 1991, against a regular deduction order made under s 32A of the same act, in accordance with the Child Support (Collection and Enforcement) Regulations 1992 (SI 1992/1989), relating to alleged arrears of £2,519.86 that had allegedly arisen between 2007 and 2015. Despite repeated notices being sent to the Child Maintenance Service and, later, to the Secretary of State, there had been no response at all from the Service or from the Secretary of State. HHJ Wildblood QC accepted the father's evidence that the children had spent more time living with him during the relevant period; he had nothing from the respondents to contradict it or to explain their reasoning. On the basis of that unchallenged evidence before him, he accepted that the appeal had to be allowed for the reasons advanced by the father. He did so, and set aside the deduction order. An order for costs was made against the Secretary of State, and the sums already paid to the Service under the deduction order were to be repaid forthwith. The father asked the judge to publish the judgment to record the difficulties that he had encountered in securing a resolution of the issue. Judgment, 28/07/2021, free
  • The parties had married in 1980, and divorce proceedings had concluded in 1991. The financial remedy proceedings had been enormously and bitterly contentious. The former wife now sought a wide range of orders against the former husband, including applications for: a freezing injunction under s 37 of the Senior Courts Act 1981; a non-molestation order under the Family Law Act 1996; an order for payment of outstanding arrears; an order for upward variation of spousal maintenance; an order for costs; and orders for various lump sums. In Cobb J's view, the presentation of the wife's case at the hearing had been somewhat chaotic, and her written evidence had contained unevidenced allegations and statements which strongly indicated a high level of paranoia and delusional thinking, including what were in his view extravagant claims of serious criminal conduct and acts of harassment. The application for a freezing order was doomed to failure given that the wife's purported claim for payment of arrears of periodical payments was itself hopeless. None of the issues canvassed in her evidence justified or called for a non-molestation order. Her applications were hopeless, unsupported by evidence, and without proper jurisdictional basis. Cobb J refused them all except for an application for upward variation of maintenance, which he would transfer to be heard at the appropriately located Family Court near to her home. Judgment, 09/07/2021, free
  • The parties married in Pakistan in 1981, separated in 2006, and the husband obtained a divorce in Pakistan in 2012. He died in 2021. In 2017, the wife had been given leave to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984. The core question was whether the unadjudicated claim by the wife under Part III survived the death of the husband and could be continued against his estate. Mostyn J noted that the Part II jurisprudence unambiguously stated that a financial claim made during marriage or following divorce expired with the death of the respondent. In his judgment, this principle applied equally whether the claim proceeded under Part II following a domestic divorce or under Part III following an overseas divorce. Although he disagreed with the decision in Sugden v Sugden [1957] P 120, he was bound by it, and thus dismissed the wife's application, since her former husband had died before her claim for financial provision following the overseas divorce could be adjudicated. However, he was also satisfied that that there was a point of law of general public importance involved, and that this would be a proper case for the grant of leave to the Court of Appeal. If there were to be a leapfrog application to the Supreme Court then the dismissal of the wife's claim would be stayed, and all injunctions would stay in force until the application for leave had been heard. Judgment, 07/07/2021, free
  • The parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
  • The latest release of statistics on the Child Maintenance Service for Great Britain between January 2015 and March 2021. News, 30/06/2021, free

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