Stewarts Law LLP
Stewarts Law LLP
11/22/2024 | News release | Distributed by Public on 11/22/2024 07:41
Family law brief in New Law Journal considers jurisdiction, privacy, FDR hearings and private equity
In the 8 November edition of New Law Journal, our Divorce and Family team provided the first in a new series of quarterly updates on the state of family law in England and Wales. These articles will review recent, published judgments relating to family law matters and highlight those of particular interest to enable practitioners to keep abreast of evolving law.
In keeping with the President of the Family Division's stated objective to "open up" the Family Court and explain its workings and decisions, the judiciary continues to publish judgments at a keen pace. This quarter, senior associate Ellie Hampson-Jones and knowledge development lawyer Carla Ditz explore four subjects:
- Jurisdiction
- Publicity/privacy
- The importance of financial dispute resolution hearings
- The realisation of private equity interests and their interaction with orders produced at trial
A short summary of these themes and the relevant cases follows. Read the full article on New Law Journal's website.
Jurisdiction
TI v LI [2024] EWFC 163 (B)
England and Wales left the European Union on 31 January 2020. Before Brexit, the law dealing with jurisdiction on divorce was contained in EU legislation. This meant an amendment to section 5(2) of the Domicile Matrimonial Proceedings Act 1973 was required after Brexit, setting out the English court's jurisdiction to entertain divorce proceedings.
The wording of this amended legislation departs slightly from the previous EU wording, leading to questions about how it should be interpreted. The judgment in TI v LI is the first reported decision on the interpretation of the amended provisions in section 5(2).
Publicity/privacy
G v S (Family Law Act 1996: Publicity) [2024] EWFC 231 (B)
The direction of travel in the family courts is that there should be greater access to understanding how and why decisions are made. One of the purposes of this publicity is to engender greater trust in the judiciary across society. This case required the judge to consider publicity and privacy in proceedings under the Family Law Act 1996("FLA 1996").
In this matter, a former husband sought permission to speak publicly about his involvement in FLA 1996 proceedings in the context of a documentary about domestic abuse and 'honour-based violence'. His position was that the FLA 1996 proceedings, while heard in private, are not subject to any restriction in respect of publication. He argued that he was, therefore, free to speak publicly about the proceedings without finding himself in contempt of court. The judge disagreed, denying his application to speak publicly about the proceedings, emphasizing the need for confidentiality in cases involving domestic abuse, especially when children are involved.
Financial dispute resolution hearings
Legislative changes introduced in April 2024 require practitioners to explore fully with clients whether alternative forms of dispute resolution (such as mediation) are a more appropriate vehicle for resolving disputes than court-based procedures. Failure to properly explore and engage in these alternative options can result in clients being at a risk, in the future, of cost orders being made against them.
It is perhaps not surprising, therefore, that Mr Justice Peel, in his short judgment of GH v GH, overturned a judge's decision to bypass the financial dispute resolution procedure and proceed directly to a final hearing.
Private equity interests
Sir Jonathan Cohen was required to consider the construction of the trial order made by (as he was then) Mr Justice Mostyn in the decision of A v M [2021] EWFC 89.
Mr Justice Mostyn's decision is likely to be familiar to practitioners who operate within the private equity space. The judgment precisely calculated the wife's share of the husband's co-investment and carried interest in a private equity fund. The wife subsequently received £9m from her share of the fund but claimed the husband was in breach of his obligations under the trial order because she was cashed out of the fund when it 'exited' and was excluded therefore from a new 'continuation fund'. The judge disagreed. The fact that the husband invested (as he was obliged to do) some of the proceeds into a continuation fund did not place a requirement on the husband to give the wife the same opportunity.
You can find further information regarding our expertise, experience and team on our Divorce and Family pages.
If you require assistance from our team, please contact us.
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