One of the more curious aspects of English family law is that the Matrimonial Causes Act 1973 allows for financial remedies to be granted not only when the parties were validly married and seek to divorce (or judicially separate) but also in cases where the court issues a declaration of nullity.  A marriage is void (and can be declared a nullity) on the grounds set out in s.11 of the MCA 1973, the first of which is that it was not a valid marriage under the provisions of the Marriage Acts 1949 to 1986.  The caselaw has developed so that the following categories of ‘marriage’ can exist:

1. A valid marriage which can be dissolved by a decree of divorce;
2. A void marriage which the court can declare to be a nullity; or
3. What has become known as a ‘non-marriage’ or ‘non-existent marriage’, being some form of marriage ceremony which was neither valid nor void.

Categories (a) and (b) give rise to the scope to seek financial remedies.  Category (c) does not.  This presents problems in the context of religious marriages, such as an Islamic Nikah ceremony with no accompanying civil marriage ceremony.  A Nikah is clearly not a valid marriage under the Marriage Acts, unless accompanied by a civil ceremony of marriage, but is it a void marriage or a ‘non-marriage’?
 
Until recently the law seemed recently settled in that unless the relevant marriage ceremony purported to, or attempted to, comply with the requirements of the Marriage Acts it would be considered to be a ‘non-marriage’ rather than a void marriage.  A purely religious marriage such as a Nikah would generally be regarded as being a non-marriage rather than a void marriage, absent very unusual features.  The case of Ahkter v Khan seemed to advance the law to a significant degree.
 
Ms Akhter and Mr Khan entered into an Islamic marriage in a public ceremony in England.  They both knew that they would need to have a separate civil ceremony to be validly married, and they agreed they would go through such a ceremony in due course.  For various reasons they never did so.  They lived together as man and wife for some 18 years and had four children together.  After they separated the ‘wife’ (as she was referred to by the judge throughout his judgment) sought a decree of nullity.  The ‘husband’ argued that it was a non-marriage, not a void marriage, and there was no entitlement to a decree.
 
Represented by the late (and great) Valentine Le Grice QC in one of his final cases before his untimely death, Ms Akhter argued that the marriage should be regarded as being void, praying in aid rights under the ECHR.  Mr Khan argued that the parties knew that they had married only in a religious ceremony and so this did not come close to being a void marriage, because the parties had not even tried to comply with the Marriage Acts.  The Attorney General, intervening in the proceedings, supported Mr Khan’s case and resisted any extension to the law.
 
At first instance, Williams J agreed with the wife’s case (see [2018] EWFC 54).  He found that there should be ‘an interpretation of section 11 which allows more flexibility’ (para [91]).  In his view, the Nikah ceremony needed to be seen as part of a wider process which the parties had embarked on, including proceeding to have a civil ceremony.  The husband had reneged on the agreement to have a marriage ceremony despite the wife seeking it.  The parties had held themselves out as married for 18 years.  On the basis of this ‘slightly more flexible interpretation’ of section 11, the court granted a decree of nullity. Ms Akhter and Mr Khan thereafter reached a financial settlement by compromise, without appealing the decision of Williams J. 
 
The decision of Williams J gave hope to a number of women in a similar position to Ms Akhter, who would otherwise leave a potentially long religious marriage without any scope to seek financial remedies beyond any rights they may have pursuant to TOLATA in relation to property rights of Schedule 1 of the Children Act 1989 if there were dependant children. That hope has proved to be short-lived.
 
Despite Ms Akhter and Mr Khan compromising their case, the Attorney General appealed Williams J’s decision.  Various interested parties intervened in the appeal.  On 14 February 2020 the Court of Appeal (Sir Terence Etherton MR, Lady Justice King and Lord Justice Moylan) allowed the appeal and overturned the decision of Williams J (see [2020] EWCA Civ 122).  In a lucid and clear joint judgment of the court, the law was compendiously reviewed.  The court was evidently concerned that the law should not make it difficult for individuals to know whether they were married or not. The court stated that the current law ‘might be described as complex, [but] we would suggest that it is not difficult for parties who want to be legally married to achieve that status’ by complying with the procedure for a civil marriage pursuant to the Marriage Acts.
 
The Court of Appeal rejected the suggestion that all religious marriages should be considered to be within the scope of s.11.  However, in terms of terminology it was preferable to refer to such ceremonies as being a ‘non-qualifying ceremony’ rather than termed a ‘non-marriage’.  Such ceremonies, unless they purport to be complying with the Marriage Acts, would fall outside the categories of ‘valid’ or ‘void’ marriages, with no entitlement to any kind of decree.  The court did not seek to define what ‘purport’ should mean in this context but suggested that ‘that the focus of the parties who want to marry and of those officiating at a ceremony of marriage, should be on complying with the required formalities so that they can be confident that they have contracted a valid marriage’ (para 66).  The court also wholly rejected the various human rights arguments raised in support of Williams J’s conclusions.
 
No sooner was the door slightly opened to a broader interpretation of void marriages than it has been firmly slammed shut.  If you want to be valid married (or even a party to a void marriage) you need to try to become validly married in accordance with the Marriage Acts. 

The Family Procedure (Amendment) Rules 2020 come into force on 6 April 2020.  They contain some important revisions to the FPR which financial remedy lawyers need to be aware of, in particular in relation to communicating with the court, new rules on costs estimates and the making of open proposals (to give greater scope for the courts to make costs orders where parties have failed to make reasonable open proposals) and electronic working :

- a new rule 5.7 makes it clear that any party's communications with the court must be disclosed to and copied to the other parties to the proceedings (unless the communication is 'purely routine, uncontentious and administrative'.

- rule 9.27 (estimates of costs) is replaced from 6 July 2020 by a new rule which requires parties to not only file and serve an estimate of costs incurred up to a particular hearing but also (I) before the first appointment include an estimate of the costs to be incurred to the FDR appointment and (ii) before the FDR appointment include an estimate of the costs to be incurred up to the final hearing if settlement is not reached.  The parties must also file a full statement of costs 14 days before the final hearing.  The court must recite a failure to follow this rule on any order.

- rule 9.27A is also introduced with effect from 6 July 2020 requiring open proposals for settlement 21 days after the FDRA if settlement is not reached. If there is no FDRA then the open proposals must be filed and served not less than 42 days before the final hearing date.

- a new form of rule 27.9 deals with recording and transcripts of proceedings.
​
- an entirely new Part 41 is added to the FPR empowering the court to make Practice Directions in respect of proceedings taking place by 'electronic means', in other words permitting electronic filing, as is now the usual practice in the High Courts Business & Property Courts and the Queens Bench Division.

The winds of change are blowing.....

The full text of the amendments can be downloaded from the link below.

Three judges, including a judge of the High Court, have obtained injunctions against a litigant who appeared before them in court in various proceedings.  The litigant in person is said to have undertaken a campaign of harassment against each of them following what, he perceived to be, unfair treatment at their hands.  The harassment was sometimes direct abuse shouted in the street, but mainly material published online highly critical of each of the judges.

Is this a first?  I know that counsel and solicitors have occasionally required protection from unhappy litigants (usually on the other side, but sometimes their own former clients) but I cannot think of a precedent of judges seeking the protection of the courts following them exercising their judicial function.
​

The Family Procedure Rules 2010 have been amended to allow complex family cases to be heard by a Divisional Court, meaning a court comprised of two or more High Court judges from different divisions.  Consequently it may now be possible for a complex divorce cases which involves difficult issues of trusts law or company law to be heard by a Divisional Court comprised of a Family Division judge and Chancery Division judge.  Similarly, complex care proceedings which involve difficult issues of medical law could be heard by a Family Division judge sitting with a Queen's Bench Division judge who has experience of complex medical evidence in personal injury cases.  

​In fact, in suitable cases it may be possible to constitute a Divisional Court with a family judge and a Deputy High Court judge (i.e. a barrister or solicitor appointed to sit as a part-time High Court judge under s.9 of the Senior Courts Act) who is an expert in the particular area of law arising in the case.

It will be interesting to see when this power is first used.

​

​

Back in December 2015 I wrote a piece here explaining how regulation 50 of the Child Support Maintenance Regulations 2012 appeared to mean that where a parent shared day to day care of a child equally with the other parent there would be no liability on that parent to pay child maintenance as the non-resident parent (Equally Shared Care of Children: A Pyrrhic Victory If For Financial Motives) .  It appeared that such a parent would not need to have exactly 50% of the overnight stays so long as on the evidence s/he shared the day to day care equally.  

In its recent decision in JS v Secretary of State for Work and Pensions (Child Maintenance Assessments - Calculations) [2017] UKUT 296 (AAC) the Upper Tribunal has read regulation 50 the same way as I did.  The Upper Tribunal overturned the First Tier Tribunal's decision that the father did not share day to day care care because he had the child for only 172 nights a year.  The overnight care arrangements were not determinative of the question of whether the 'day to day care' was equally shared and the First Tier Tribunal had placed too much weight on the overnight stays.

The decision in the JS case does not determine whether the effect of the shared care arrangement being equal is that there is CMS jurisdiction to make an assessment but the assessment is nil or whether it removes the case from the jurisdiction of the CMS at all.  The former view seems to be implied by the Upper Tier Tribunal's judgment but it was not an issue which fell for decision in that case.  It is an important issue, however, for the reasons explained in my earlier piece in 2015.  If the CMS has no jurisdiction in a case of equally shared care then the court will have jurisdiction to make a child maintenance order, which will not be solely constrained by the statutory tests under the Child Support Act 1991.  That important issue remains to be resolved by the courts.

​Divorce Barristers is a new service providing direct access to top London divorce barristers for advice, on the basis of a fixed fee. The service is aimed at those starting out on divorce proceedings, or considering whether you wish to begin a divorce or separation process, and need an early 'steer' on the available options.  It may also be of interest to those already engaged in proceedings and with lawyers on board, but who require the assurance of a discreet second opinion.  For more details see www.divorcebarristers.co.uk .

I have already cast my vote in the referendum by postal ballot but, nevertheless, the apparent simplicity of the question on the paper still troubles me.  The implications of 'Remain' are easy enough to understand because we are already members of the EU and we know what its institutions and its membership rules are.  Although we cannot know with any certainty what the future may hold, we can see that the UK is unlikely to be involved in further movements to greater integration within the EU and, in any event, the growing Eurosceptism around Europe suggests that any such further integration is either unlikely or only likely to occur if accompanied by substantial reform of the EU. So the consequences of a 'Remain' vote seem easy enough to understand. 

​The implications of a 'Leave' vote are quite a different proposition.  Leaving the Union is easy enough to understand because it means we will cease to be a member of the EU.  But what then?  The actual ending of EU membership can be up to 2 years after the vote.  During which time the UK will need to negotiate its departure. Only the rabid nationalists know that leaving the EU does not mean we cease to have anything to do with the EU.  Everyone knows that we will need to negotiate some sort of trade agreement with the EU (unless we are seriously going to stop 40% of our economy's trade overnight).  'Leave' cannot mean doing no more business with anyone in the EU.  Which begs the question which the ballot paper does not ask.  What are those voting for leave prepared to concede in return for access to the EU's market after a Brexit?  A payment to the EU in return for access to its free trade area?  If so, how much?  Compliance with EU product and employment regulations? If so, which ones and what about new ones which the EU may agree amongst its members after we leave? Compliance with the EU rules on jurisdiction in civil or family disputes?  If not, how will our businesses and families predict how disputes may be resolved?  Free movement of people and labour? 

​Assuming that we will want to reach a trade agreement with the EU after a Brexit which is not substantially more disadvantageous for Britain than the existing benefits we have by being part of the common market we are going to have to accept that the EU will expect concessions to be made.  We can expect the concessions the EU will demand to be pretty onerous.  After all, none of the remaining EU members are going to want to make it look like leaving the EU is an easy option.  The UK can hardly expect to be treated as well as any member, or even as well as another country which has never been a member.  It seems likely to me that the conditions for having a free trade agreement with the EU are likely to be pretty similar to the terms we have to abide by as members of the EU.  Which means that we either accept that we are not going to have a free trade agreement with the EU (which will be little short of a national catastrophy) or that we are going to have such an agreement but on terms very similar to those of our existing membership.  Why would we choose to be bound by rules the same as those we are at the moment, but without any say in the making of them?

​The ballot paper does not ask these questions.  Neither does it provide the politicians who need to deal with a potential Brexit and the need to negotiate with the EU any guidance as to what sort of relationship the UK wants to have with the EU in the future, or on what terms.  Those are, in many respects, bigger questions than the simple 'Leave' or 'Remain' question.

​There is a reason we do not use referendums very often.  It is because life and reality is often a lot more complicated than any simple question on a ballot paper can answer.

Many family law practitioners will have experience of cases where one parent (usually the father) presses strongly for equal shared care of the children and there is at least a suspicion that part of the motivation is to reduce the amount of child maintenance which would be paid under the formula set by the Child Support Act 1991.  It is very well known that the assessment of child maintenance is reduced by reference to the number of nights the child spends with the non-resident parent in a prescribed 12-month period.  So, less than 51 nights results in no reduction, 51-103 nights results in a 1/7th reduction, 104-155 nights results in a 2/7th reduction and 156-174 nights results in a 3/7th reduction. 

What if the parent who is not the applicant to the CSA has exactly the same care of the children as the ‘person with care’, or even more than the person with care?  The Child Support Act 1991 specifically provides that there may be more than one person with care in respect of the same child (s.3(5)).  However, the Act also defines the non-resident parent as a parent who is not living in the same household with the child and the child has his ‘home’ with a person who is, in relation to the child, a person with care (s.3(2)).  There is a degree of circularity in these provisions.  What if the child has ‘his home’ with both parents so that the child lives ‘in the same household’ with each parent at different times?  Clearly those are very difficult matters to resolve in case where the time is shared exactly between the two households.

No doubt in an effort to resolve some of those difficulties the Child Support Maintenance Calculation Regulations 2012 introduced a provision at regulation 50.  Its key provisions read as follows:

(1) Where the circumstances of a case are that--
(a) an application is made by a person with care under section 4 of the 1991 Act; and
(b) the person named in that application as the non-resident parent of the qualifying child also provides a home for that child (in a different household from the applicant) and shares the day to day care of that child with the applicant,
the case is to be treated as a special case for the purposes of the 1991 Act.
 
(2) For the purposes of this special case, the person mentioned in paragraph (1)(b) is to be treated as the non-resident parent if, and only if, that person provides day to day care to a lesser extent than the applicant.
 
(3) Where the applicant is receiving child benefit in respect of the qualifying child the applicant is assumed, in the absence of evidence to the contrary, to be providing day to day care to a greater extent than any other person.
 
(4) For the purposes of paragraph (3), where a person has made an election under section 13A(1) of the Social Security Administration Act 1992 (election not to receive child benefit) for payments of child benefit not to be made, that person is to be treated as receiving child benefit.
 
We can unpack this as follows:

1. There is a presumption that the person in receipt of child benefit (or who would be in receipt but for having elected not to receive it on the grounds of high income eligibility and taxation) provides day to day care to a greater extent than any other person;
2. That presumption can be rebutted by evidence which shows that the person named in the application as the non-resident person does not provide care to a lesser extent than the applicant;
3. If that evidence the case becomes a ‘special case’;
4. The consequences of this ‘special case’ arising are those set out in subsection (2), namely that the person named in the application is not a non-resident parent.

 
Clearly proving that the person named in the application does not provide care to a lesser extent than the applicant may not be very easy.  The mere fact of an equal number of nights of care does not, in my view, result the day to day care is equal.  In the event of any doubt the presumption based on the receipt of child benefit will kick in.  It seems doubtful that there will be many cases where the CSA or a Tribunal finds that the care was exactly equal.  But what are the consequences of satisfying the CSA that the care is at least equal?  That may be the case in a situation where the child arrangements order specifically recites the agreement between the parties that they share the day to day care equally.
 
First and foremost, of course, the respondent will not be a ‘non-resident parent’ and so no child support maintenance calculation can be enforced against him.  That much seems to be very clear. 
 
Secondly, if the care is shared but in fact the person named in the application has more than half of the day to day care the position may be reversed so that he can apply for a child support assessment against the other parent.
 
Thirdly, in the event that the care is deemed to be absolutely equal, so that neither provides day to care to a lesser extent than the other, the position is somewhat more complicated.  One view is that the CSA would make a ‘nil assessment’. Others take the view that the absence of a non-resident parent means that the CSA has no jurisdiction to make an assessment at all.  The distinction is important.  If the CSA has jurisdiction but makes a nil assessment the courts have no jurisdiction to make an order for child maintenance (s.8(3)).  No child maintenance would be payable at all by either carer.  If the CSA does not have jurisdiction to make a maintenance calculation, then the court is at liberty to make a periodical payments order pursuant to s.23 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989. Which is correct?
 
In terms of the first view, the argument would go as follows.  Either the person with care or the non-resident parent may apply for a maintenance calculation (s.4(1)).  That is the first stage and the Secretary of State (acting through the powers delegated to the CSA) then has jurisdiction to make a maintenance calculation. Arguably this confers jurisdiction upon the Secretary of State / CSA.  Only once the maintenance calculation has been made does the next stage kick in, which is the power for the Secretary of State to collect the child support maintenance or to enforce the obligation to pay the child support maintenance in accordance with the calculation (s.4(2)).  Accordingly, as the Child Support Act 1991 is drafted, the jurisdiction to make the maintenance calculation at s.4(1) is separate from the jurisdiction to require or enforce payment by the non-resident parent.  The ‘special case’ under regulation 50 in the case of equal care does not, therefore, remove the jurisdiction of the Secretary of State but only excludes the other parent from being a non-resident parent against which the maintenance calculation duly made can be enforced.  Therefore, the Secretary of State / CSA’s ‘jurisdiction to make a maintenance assessment’ remains and the court would not have jurisdiction to make an order.
 
In terms of the second view, the statutory provisions are the same as above.  The arguments proceed in two different ways.  The first way is as follows.  Regulation 50 means that there is no ‘non-resident parent’ in the case.   Therefore, there is no ‘qualifying child’ because there can only be a ‘qualifying child’ if ‘one of his parents is, in relation to him, a non-resident parent’ (s.3(1)).  Without a qualifying child there is no jurisdiction conferred on the Secretary of State / CSA to make a maintenance calculation under s.4 and so the jurisdiction of the court is not restricted under s.8.  The second argument reaches the same conclusion another way.  Section 8 applies to ‘any case where the Secretary of State would have jurisdiction to make a maintenance calculation with a respect to a qualifying child and a non-resident parent’.  As there is no non-resident parent by reason of regulation 50 it would appear that s.8 restores the jurisdiction of the court to make orders.
 
Certainly it would appear that the second view is on stronger ground than the first view, but the position has not yet been resolved by way of an authoritative judicial decision.
 
The consequences are that although an equal sharing of care may result in an exclusion of the jurisdiction of the CSA it will open the door to the court making a maintenance order.  As the courts are less constrained than the CSA in the way they assess the means of the paying party that may well be to the advantage of the receiving parent.  The court may also permit a far more extensive inquiry into the means of the paying party than the CSA would ever carry out.
 
The lesson for parties is that an equal shared care arrangement may not have quite the financial implications which are initially assumed. In fact, the parent who thinks the equal care may reduce his financial obligations may find quite the opposite is true.

I am honoured and delighted to have been ranked by Chambers and Partners 2016 as a leading London barrister for Matrimonial Finance.  Chambers and Partners is the leading directory for barristers and is compiled after extensive market research and consultation with clients.  The 2016 edition says this:

Andrzej Bojarski of 36 Bedford Row 
Heads the family team and handles matrimonial finance cases. He is respected for his academic knowledge of the law, commercial awareness and detail-oriented approach. He is experienced in dealing with matters involving complex asset structures including trusts.
Strengths: "He is just outstanding. He knows the law and procedure like the back of his hand. He handled a very difficult client immaculately. He was measured, eloquent, sensible and got the best possible result for his client."

​In June 2014 Rhys Taylor and I published an article on the Family Law Week website examining the potential liability of lawyers who draft pre-nuptial agreements.  In that article we pointed out that the extent of future liability for negligence was difficult to estimate in many cases at the time the agreement was drafted.  Furthermore, we noted that s.14A of the Limitation Act 1980 (added to the Act by the Latent Damages Act 1986 extended the period within which an action for negligence could be brought to 3 years after the date when all the material facts about the damage which is the subject of the claim became known or should reasonably have become known.  The backstop for bringing an action was extended to a maximum of 15 years after the date of the negligent act or omission.

We noted that it might not always be able to identify the point at which the damage caused by negligent drafting of a pre-nuptial agreement would become apparent.  It was, however, reasonable to assume that the point of damage might only arise at the stage when the marriage breaks down and the agreement is sought to be put into effect.  

The recent case of Blakemores LLP v Scott and others [2015] EWCA Civ 999 provides useful reading in this context.  It was not a case concerning a pre-nuptial agreement but the situation in that case can reasonably be compared to the effects of the negligent drafting of a pre-nuptial agreement.  In the Blakemores LLP case the solicitors acted for a number of individuals in a dispute over land.  The solicitors failed to lodge objections to the land being registered in the names of a couple for whom they did not act.  That left their clients needing to apply to have the Land Register altered by the court.  They were not advised that the failure to lodge the objections meant that the court had a discretion to refuse to alter the register.  In December 2010 the court refused to correct the registration of one of the plots of land.  The issue was whether the time for limitation arose when they learned of the negligent act in failing to lodge the objection and the scope for the court to refuse to permit the alteration of the register, or only once the court refused to alter the registration.  The solicitors argued that the knowledge of the negligent act was clear to the claimants by April 2009 when they were informed of the potential for the court to exercise its discretion against them by reason of the failure to register their objection prior to the titles to the land being registered..  The claimants argued that it would only by at the point in December 2010 when they learned that the court had refused their application in relation to one of the plots.

The Court of Appeal agreed with the claimants.  The court held that s.14A of the 1980 Act ‘requires that the starting date is the earliest date on which the claimant had both the knowledge required for bringing an action for damages  in respect of the relevant damage and a right to bring such an action’.  The court could not see that as at 2009 the claimants had such knowledge about the consequences of the negligent act as would justify a reasonable person to consider the ‘damage’ to be sufficiently serious to justify issuing a claim in damages against the firm.  The time for bringing an action in negligence only arose at the time when they learned of the adjudicator’s decision arose.

If we compare the situation with a pre-nuptial agreement, it is easy to see how a party to the marriage is unlikely to consider any of the detailed contents of the agreement after the marriage until the point when the marriage falters and advice is sought on the remedies which might be available upon divorce.  It may be that advice is then given which provides sufficient knowledge of the negligence and the damage flowing from it so as to start the clock ticking on the 3 years allowed to institute proceedings under s.14A.  However, akin to the Blakemores LLP case, it is also possible to conceive of the ‘damage’ only becoming apparent at the point when a court rules upon pre-nuptial agreement within the financial remedy proceedings.  

15 years is a long time over which to be accumulating liability for potentially negligent acts.  The use of limitation of liability clauses remains something lawyers need to seriously consider in this context.