The most practical, comprehensive authority on matrimonial finance available
This work provides an unrivalled source of advice and expertise, dealing with day-to-day problems and delivering practical solutions. Written by a leading family law barrister, the author meets the requirements of the modern practitioner, offering detailed coverage of all major issues.
Authoritative, lucid commentary, that provides insight into how the court will act
Know your sources and keep pace with amendments
Express clearly what you want with this bank ofover 100 precedents, written in plain
English. Includes a fully nuanced Pre-Nuptial Contract
Collated from a wide variety of sources, the financial tables provide you with hands-on information about tax, child support, welfare benefits, house prices and economic indicators
"It is the role of a looseleaf like this, not only to state the law as it is, but also to hazard a forecast as to where it may be heading. This thrusts on a writer the necessity of analysing recent decisions of the High Court and Court of Appeal, looking for any gems of insight they may contain, as the harbinger of things to come. Two recent events have contributed to a sense of ‘all change" ... Read more from Peter
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Barrister, 29 Bedford Row Chambers
Update 26 (February 2013)
This update contains general updating of Divisions A1, A3, B1, B3, C, E3, I and J to take account of new legislative and case-law developments.
The legislation in Divisions I and J has been brought up to date as at 7 January 2013.
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How to use this work
The looseleaf arrangement of Matrimonial Property and Finance enables the book to be kept constantly up to date by the removal and insertion of updating pages. These are supplied at least three times a year in the form of Updates. Each Update is accompanied by filing instructions, which should be followed carefully to ensure that your book is fully and correctly updated. At the end of the binder, you will find a Filing Record card, which should be filled in each time an Update has been filed. A Checklist of Pages is sent with each updating issue, to be filed at the back of the binder. You should use this to check that your copy of Matrimonial Property and Finance has been correctly updated.
Structure of the book
The binder is divided into ten Divisions labelled A–J, which are separated by blue plastic divider cards. Divisions A, B, D and E are further divided into subdivisions, for example D1 and D2. Tinted tabs at the page edge have been included to aid navigation through these subdivisions. Details of the contents of each Division (or subdivision) will be found at the beginning of each.
The text is divided into numbered paragraphs. Cross-references to material in other Divisions (or subdivisions) are to the paragraph numbers in those Divisions. For example, a reference to A2 directs the reader to paragraph 40 in Division A2. Where no letter (or letter and number) appears outside the square brackets, the reference is to a paragraph number in the same Division.
Division F contains financial tables, which are grouped into five categories and numbered, for example, Table 1.1.
The page number is at the foot of each page and includes the Division letter (or subdivision letter and number) and the page number, eg A2–31, C–12.
How to use the precedents
The precedents in Division G are model documents, which are intended to be adapted for use as working documents.
Within the model documents, the text in square brackets in italics gives instructions; the text in square brackets in roman is suggested text or alternative wording. Alternative provisions are introduced by [EITHER [alternative A] OR [alternative B]], etc. Once the document has been modified and completed to suit individual needs, the square brackets, instructions, alternative text and any clauses that are not required should be deleted. Any text in round brackets should remain.
Tables and index
The book contains tables of cases, statutes, statutory instruments and practice directions. These are located behind the plastic divider card marked ‘Tables’.
A subject index appears at the end of the binder.
The tables and index will be updated along with the rest of the book.
It is the role of a looseleaf like this, not only to state the law as it is, but also to hazard a forecast as to where it may be heading. This thrusts on a writer the necessity of analysing recent decisions of the High Court and Court of Appeal, looking for any gems of insight they may contain, as the harbinger of things to come. Two recent events have contributed to a sense of ‘all change’.
The first was really no more than a passing remark by Mostyn J, but—like many of his utterances—one that could be around for a long time, in B v S (Financial Remedy: Marital Property Regime) (2012):
‘Save in the exceptional kind of case exemplified by Miller/McFarlane a periodical payments claim (whether determined originally or on variation) should in my opinion be adjudged (or settled), generally speaking, by reference to the principle of need alone < to allow consideration of the concept of sharing to intrude in the assessment of a periodical payments award seems to be to be a doubtful principle, and is replete with problems of quantification by any sure standard. The sharing principle in relation to matrimonial property is simple enough: it is usually 50/50 < But if the concept of sharing is going to uplift above the assessment of need a periodical payments award which will be paid from post-separation earnings, how does a judge set about doing it? Is it a third? Or 40%? Or 20%? There are not even any signposts along the road to a fair award.’
The judge’s logic seems unassailable. Not only does it call into question the practice of sharing post-separation bonuses, albeit in dwindling percentages (think N v N (2010), and B v B (2010)); but also it could lay the axe to decisions like Parlour (2005), Q v Q (2005) and V v V (2005) where wives walked away with 37.5%–40% of their husbands’ wage packets. If Mostyn J is right, it is difficult to see how, in a big money case, an award of more than 50% of the assets to the wife can ever be justified, merely on the ground that the husband will go on earning after the divorce.
The other fascinating decision is that of the majority in Petrodel Resources v Prest (2012) about which, of course, much has been written already. What is it about Prest that excites such comment, some of it vehement? Not, surely, that Moylan J stepped marginally out of line in dabbling with company property (reminding one of Johnson’s dog: ‘Sir, a woman’s preaching is like a dog walking on its hind legs. It is not done well; but you are surprised to find it done at all’). Rather, it is the entertaining spectacle of the forces of Chancery and Family going head to head in public combat, leaving Thorpe LJ as the last man standing. Now that the case is off to the Supreme Court, it remains to be seen whether he will receive a belated vindication. Certainly it will be interesting to see Lady Hale and Lord Wilson pitted against the brightest stars of the commercial firmament (assuming that is how it falls out). In the meantime, I leave you with this extract from the short, but resonant, judgment of Patten LJ:
‘Married couples who choose to vest assets beneficially in a company for what the judge described as conventional reasons including wealth protection and the avoidance of tax cannot ignore the legal consequences of their actions in less happy times < judges of the Family Division *have adopted+ < an approach to company owned assets < which amounts almost to a separate system of legal rules unaffected by the relevant principles of English property and company law. That must now cease.’
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