Family law themes of the year
Sarah Hutchinson and Elizabeth Burch discuss key family cases, including developments in the law on nuptial agreements and the emphasis on the voice of the child in the courts
The family courts continue to be overburdened and, as a result, alternative methods of resolving family disputes are increasingly relevant. Arbitration in family cases has been possible since 2012, and the scheme was extended to include disputes regarding children in 2016. But uptake has been slow – only a small number of cases are currently resolved through arbitration.
It is hoped that the strong judicial support shown earlier this year in DB v DLJ  EWHC 324 (Fam), which made clear that parties will be held to the terms of an arbitral award in all but the most exceptional circumstances, will encourage more parties and practitioners to use arbitration as a valuable alternative to court proceedings.
A particular benefit of arbitration is that it is private. A major concern of many clients is privacy, particularly as there is a difference in approach between judges as to how family cases should be both held and reported. For example, Mr Justice Holman favours holding cases in open court, resulting in judgments being reported openly.
Reported cases continue to develop family law, and the law in relation to pre-nuptial agreements has changed enormously in recent years. The Supreme Court decision of Radmacher (formerly Granatino) v Granatino  UKSC 42 transformed the law, and while pre-nuptial agreements are still not binding in this country, the court continues to show strong support for them in the right circumstances.
The recent decision of H v H  EWFC B81 upheld a pre-nuptial agreement following a very short (12-week) marriage. The court held that the agreement was there to serve a purpose, it was understood by both parties, and there was no reason why it should not serve that purpose.
Issues of non-disclosure dominated the headlines in 2015 with the Supreme Court decisions in Sharland v Sharland  UKSC 60 and Gohil v Gohil  UKSC 61. The recently reported case of Goddard Watts v Goddard Watts  EWHC 3000 demonstrates the impact these decisions have had: the wife received a further £6.42m after the original consent order was set aside.
Juffali v Juffali  EWHC 1684 (Fam) was also reported in the national press this year. The parties had enjoyed an extraordinarily high standard of living (the wife’s annual budget included £600,000 for private jet charters and over £1m for clothing and jewellery). Significantly, Mrs Justice Roberts found that the wife could not expect to replicate the standard of living enjoyed throughout the marriage, and stepped down the provision over subsequent years.
Another highly publicised case, Robertson v Robertson  EWHC 613 (Fam), demonstrated that departing from an equal division as a result of one party’s special contribution remains extremely difficult indeed. The husband set up the online fashion company ASOS but the court did not consider this to amount to a special contribution. There will be further guidance given in this difficult area in the new year when the Supreme Court will consider Work v Gray  EWCA Civ 286, in which the husband has also argued that he made a special contribution.
Another case in the Supreme Court in the new year is that of Quan v Bray and others  EWCA Civ 1253, in which the court will look again at the issue of nuptial agreements, following the wife’s appeal of a decision that a trust established by the husband to further the parties’ charitable project to save the Chinese tiger did not constitute a post-nuptial settlement.
Child’s best interests
Turning to key developments in children law, the international child abduction case of Re B (A Child)  UKSC 4 introduced new guidance on a child’s habitual residence. The analogy of a see-saw emphasised that a child’s pre-existing habitual residence should endure until a new one is acquired.
The voice of the child continues to take a prominent role in the court’s analysis of what is in a child’s best interests. In Re E (A Child)  EWCA Civ 473, Lord Justice McFarlane made clear that in every case the court should conduct a bespoke evaluation of whether a child should or should not be called to give live evidence, and that a presumption against a child giving evidence could not be justified.
Indeed, in Re F (Children)  EWCA Civ 546, the president of the Family Division made it clear that proper adherence to the principles in Re W (Children) (Family Proceedings: Evidence)  UKSC 12 means there will be an ever-increasing number of children giving evidence in family proceedings.
Impact of Brexit
Brexit has dominated the headlines in 2016. Many expect that in terms of family law, parliament will legislate for all European law to remain valid upon leaving the union, with the necessary repeals and amendments being considered thereafter on a case-by-case basis. One prediction is that jurisdiction for divorce could revert to the original English law – based on one party’s domicile or habitual residence – providing (even) more opportunities for divorce in England.
Another prediction is that given the time and resources required for Brexit, statutory reform for family law in England could be delayed by a decade. One area which many practitioners hope will not be destined for the back burner (yet again) is no fault divorce. The House of Commons library briefing paper on the topic was published in November 2016 and Resolution is continuing to campaign, but regrettably it seems highly unlikely that there will be substantial reform in 2017.
Sarah Hutchinson, pictured, is a partner and Elizabeth Burch an associate at Farrer & Co