Talking Family Law - The Resolution Podcast Resolution

We are joined by Charles Hale KC (4PB) and Tammy Knox (Pennington Manches Cooper) to discuss relocation.
 
Charles and Tammy consider the law and principles applied in these cases.  They point out that the law is the same for internal and external relocation cases, as set out in Re C (Internal Relocation), Re [2015] EWCA Civ 1305, where Charles and PMC were successful in the Court of Appeal:
https://www.bailii.org/ew/cases/EWCA/Civ/2015/1305.html
However, they both agree that the welfare evaluation can be different.
 
Charles and Tammy discuss the impact of domestic abuse and alienating behaviours.  They discuss C, Re (Parental Alienation: Permanent Removal to Germany) [2023] EWHC 1955:
https://www.bailii.org/ew/cases/EWHC/Fam/2023/1955.html
 
They make the point that practitioners should not shy away from dealing with financial plans, as cases can be made, or challenged on whether there is sufficient finance available.
 
Charles and Tammy caution us to make sure the rules around mediation are really clear, particularly if the mediation is abroad so that clients know what is without prejudice
 
Charles mentions research by Professor Marilyn Freeman: 
https://www.qmul.ac.uk/clpn/members/f/profiles/freeman.html#:~:text=Marilyn%20Freeman%20is%20widely%20acknowledged,in%20her%20areas%20of%20expertise.

What is the correct approach to a maintenance case? Listen to Sally Harrison KC (St John’s Buildings) and Farhana Shahzady (Streathers Solicitors) tell us how it is done. 
 
Sally reminds us of the guidance of Mr Justice Peel in WC v HC (Financial Remedies Agreements) (Rev1) [2022] EWFC 22 (22 March 2022) 
https://www.bailii.org/ew/cases/EWFC/HCJ/2022/22.html
when thinking about the quantum of a maintenance order.  Mr Justice Peel found that needs are an elastic concept, to be judged by reference to consideration of financial needs and obligations, whether there are children, and the age of the parties.  We discuss how the length of the marriage really impacts on how much the standard of living is taken into account.  Farhana reminds of guidance of Mr Justice Mostyn in SS v NS (Spousal Maintenance) (Rev 1) [2014] EWHC 4183 (Fam).
https://www.bailii.org/ew/cases/EWHC/Fam/2014/4183.html
 
Sally and Farhana discuss the distinction between cases involving wealthy families where the Court may well be inclined to make a Duxbury award, as opposed to need based income awards in the majority of cases.  We discuss the overall impression that Courts are being quite restrictive on terms and quantum of maintenance at present.  
 
When talking about capitalising maintenance awards, Sally wrestles with the discrepancy between the Ogden tables having a -0.25% rate of return in England & Wales, as opposed to Duxbury’s 3.75% rate of return after inflation of 3%.
Sally considers the following cases:
HC v FW [2017] EWHC 3162 (Fam) (29 November 2017) 
https://www.bailii.org/ew/cases/EWHC/Fam/2017/3162.html
Tattersall 
Z (No.5) (Enforcement) [2024] EWFC 44 (04 March 2024)
https://www.bailii.org/ew/cases/EWFC/HCJ/2024/44.html
 
Farhana tells us why it is important to consider the impact of menopause, when considering maintenance quantum, term and nominal maintenance.  She shares the details of her survey about the impact of maintenance in family law and financial remedy cases. 
 
Resolution will be releasing a spousal maintenance handbook in Summer 2024. Please check the website for details.

This month we are joined by Hilary Woodward (Honorary Senior Research Fellow with Bristol School of Law), Paul Cobley (Oak Barn Financial Planning) and Rhys Taylor (36 Group) to discuss PAG2: https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf
 
Hilary tells us about the changes in PAG2 and mentions the guide to the changes which is available on the webpage: 
https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/The-PAG2-Guide-%E2%80%93-What-Has-Changed-1.pdf
The changes include the Divorce, Dissolution and Separation Act 2020, apportionment, short-marriages, lifetime allowance, Galbraith tables, and where there is an age-gap between the parties.
 
Rhys explains the Galbraith tables – which is an attempt to provide the ‘true value’, or ‘market value’ of a defined benefit pension (not defined contribution schemes) for the purpose of divorce other than by use of the CE.  They provide a multiplier according to the person’s age and benefit to use against the income stream for a pension.  PAG2 says they are useful starting point, but remember they are a tool not a rule, which can be used when considering off-setting without the assistance of a PODE.  They have not had high level judicial consideration but they do appear in At A Glance.  Remember the current tables were drafted in early 2022 so just as the war in Ukraine started, and prior to Liz Truss’ terms as Prime Minister so there have been lots of changes in the bond markets since then.  The tables will be updated in the next At A Glance.  Paul reminds us that most of the time we are dealing with deferred pension scheme benefits i.e. where an employee has a pension scheme benefit from a previous employer.  It is therefore really important that you obtain the re-valued income to today’s date and not what the income would have been on date the person left the company before applying the multiplier. 
 
We discuss off-setting, and that the key thing to ask yourself is do you have a broad handle on what the gross value of the pension is worth before you start trading it with other assets. Followed by apportionment - when is it appropriate, including in short marriage cases.  Importantly PAG2 stresses that the relevant date, when apportionment is appropriate, is when seamless cohabitation prior to marriage commences – therefore we all should stop asking seeking the additional pension calculation from when the actual marriage starts. 
 
We discuss that the Lifetime Allowance is being abolished by the Finance Act (No. 2) 2023:
https://www.gov.uk/government/publications/abolition-of-the-lifetime-allowance-from-6-april-2024/abolition-of-the-lifetime-allowance-lta#:~:text=At%20Spring%20Budget%202023%2C%20the,work%20to%20abolish%20the%20LTA%20.
 
The lifetime allowance tax charge has in effect already been abolished, and from the 6th April 2024 the lifetime allowance will be abolished.  However, it will be replaced by the lump sum allowance, and the lump sum and death benefit allowance in the future.  The complexity comes that if a person had lifetime allowance protection before 6th April 2024 that allows a higher lump sum than is available on the standard lump sum allowance basisunder the new Act, they would still be able to benefit from the previous protections. Therefore, you must still find out whether the parties have a lifetime allowance protection. 
 
There are four new suggestions for dealing with when there is an age gap between the parties, and one party is receiving their pension, and the other person needs the pension to meet their needs but is too young to receive it currently.  PAG2 now also suggests consideration of judicial separation (not divorce), spousal maintenance, an increased percentage PSO or consecutive orders (pension attachment to pension sharing orders).  Also deferred pension sharing orders are technically possible but inherently risky. 

This month we are treated to this tour de force by Robert Cole who is Head of the Family Team at Broadway House Chambers, Leeds and regularly sits as an arbitrator and ENE/pFDR adjudicator across the country, and Peter Smith from Quantis Forensic Accountants about how to analyse business accounts. 
 
We immediately launch into a discussion about what should cause you concern in business accounts, and the well known issue that businesses always seem to be failing when people are getting divorced.  Therefore, how professionals need to have four to five years accounts to be able to look at trends.  Peter suggests we should take an overview of:
Has revenue, sales or turnover gone down?Have gross profit margins gone down? And Have costs gone up?These factors will provide a good indicator of any causes for concern. 
Robert adds to that you should have look at what fixed assets there are, and whether the valuation has been updated.  If you consider these points, you will have good insight into whether you need to ask for a valuer from the Court. 
 
Peter and Robert give us some tips for questionnaires, including: 
Asking for a copy of up-to-date profit & loss accounts, management accounts and balance sheets as most decent size businesses with accounting software will have that immediately available;Summaries from the VAT portal; And always checking viewing the Companies Article of Association;  
We discuss when valuations from the business’s own accountants are reliable. Before moving on to consider what type of valuations should be used for each business. 
 
Robert advises us that to be successful in a Daniels v Walker application that you first need to have tried to clarify matters with the expert, but even where you are not going to pursue a Daniels v Walker application but just want to make submissions about the reliability of the conclusions then questions are important to tease out vulnerabilities in the report.  Peter also points out that there is a distinction between wanting to challenge the expert’s judgment – which can be done without a separate expert – and where an expert has made a mistake for example an error in the factual basis.
 
We discuss when should a quasi-partnership apply, and Robert advises us to use the checklist from Re: Bird Precision Bellows [1986] 2 WLR 158:
close working relationship between the shareholders (usually pre-existing the incorporation);restriction on the transfer of shares to a third party;the shareholders continue to be actively involved in the day-to-day running of the company (not necessarily employed but consulted about day-to-day and strategic decisions) 
During the discussion, we refer to the following cases: 
 V v V (Financial Remedy) [2005] 2 FLR 697
J v J [2014] EWHC 3654   HTTPS://WWW.JUDICIARY.UK/WP-CONTENT/UPLOADS/2014/11/J-V-J-JUDGMENT.PDF
Martin v Martin [2018] EWCA Civ 2866 – risk and liquidity 
https://www.bailii.org/ew/cases/EWCA/Civ/2018/2866.html
 
Versteegh v Versteegh [2018] EWCA Civ 1050 – on the lack of reliability in valuations
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2018/1050.html&query=(versteegh)
 
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360 
https://en.wikipedia.org/wiki/Ebrahimi_v_Westbourne_Galleries_Ltd
 
G v G (Financial Provision: Equal Division) [2002] 2 FLR 1143 - Where shareholders act in concert and would be unlikely to sell separately then discount less applicable
 
Clarke v Clarke [2022] EWHC 2698 – on whether a minority discount should apply
https://www.bailii.org/ew/cases/EWHC/Fam/2022/2698.html
 
Technical factsheet from ACCA – for minority interests discounts
https://www.accaglobal.com/content/dam/ACCA_Global/Technical/fact/technical-factsheet-167.pdf
 
 WM v HM [2017] EWFC 25 (09 May 2017) 
https://www.bailii.org/ew/cases/EWFC/HCJ/2017/25.html

In this episode we are joined by Professor Emma Hitchings (Bristol University), Professor Emerita Gillian Douglas (Kings College, London), and Joanne Edwards (Chair of Resolution’s Family Law Reform Committee/Forsters) to discuss the Fair Shares report.
 
This report is the first time there is a fully representative picture of the financial arrangements families make (and in a lot of instances, don’t make) on separation and divorce, and how they arrive at those arrangements.  It is essential reading for anyone practising, or interested, in this area. The full report can be found here:
https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf
 
In this episode Emma tells us that the report found that the median value of assets on divorce is £135,000.  Thus, the cases that hit the headlines are not representative of most people’s experiences.  The research serves to dispel a lot of myths peddled in the media about finances on divorce.
 
In the research the academics classified the divorcees into different types or mindsets i.e. how they viewed their marriage, and their hopes on separation.  This arose from the qualitative data.  We discuss how using this typology can help understanding of how divorcees reach different outcomes despite having similar circumstances.  Broadly, there was:
 
The unequal couples – they can be the most problematic to help. There is invariably a power imbalance, and there could have been domestic abuse, including financial abuse.  In these cases, it is not possible for the parties to genuinely negotiate.  The effect can be that the less dominant party walks away with nothing, or a poor agreement.
 
The partners – these couples were a true joint enterprise during the marriage and that feeds through to how they agree things should be divided on divorce.
 
The housemates – these couples were individualistic during the marriage, they saw things as ‘theirs’, they kept their finances separate during the marriage, and they expect to keep what is ‘theirs’ on separation.
 
The parents – in these relationships the children are the most important concern, and the division of assets is structured to support parenting.  The parent with care was found to be very focussed on the immediate future.
Jo considers how being aware of these divorcee types may feed into practice. Emma and Gillian hope to be able to analyse whether each type impacts on the outcome process in the future.
 
We discussed how spousal maintenance is relatively uncommon, and where it is granted it is definitely not a ‘meal-ticket’ for life.  It is virtually always for a fixed term, and that term is generally linked with child-care responsibilities, and it is really associated with financial vulnerability of the receiving spouse.  We consider whether a different term would help dispel the myths as very rarely are people ‘maintained’ – they are usually working and just having some assistance in meeting their living expenses.
 
The research found evidence that mediation outcomes did not work out as people expected in many more instances than outcomes arrived at through lawyer negotiations or court. We try to analyse why that may be this case; was it because people had exhausted other options and felt obligated to get to an agreement in mediation. Jo, as a mediator, considers the implications.
 
We invite our guests to share some concluding thoughts for reform.  Gillian believes that how we share pensions (as only 11% of cases have pension sharing orders), and the needs of older children would be obvious areas for reform.  Emma says that this research dispels the proposals that there should be a time-limit on maintenance, or a presumption of 50/50 sharing as that would lead to unfairness and parties being unable to meet their needs.  As we look ahead to the Law Commission publishing a scoping report next September, Jo applauded the fact that Fair Shares

This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).
In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:https://www.nuffieldfjo.org.uk/resource/separating-families-experiences-of-separation-and-support
Jon tells us about this research and how they looked at 42 people’s experiences of separation.  Eight participants in the study had been to mediation and told the researchers about their experiences.  Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance.  In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort. 
We all agree that mediation is the gold standard for resolving issues about how to care for children.  We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past.  Jo talks about  the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation.  We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation.  Rachel reminds us of the importance of ‘do not harm’.
Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/
All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings.  Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time. 
We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted.