This handbook is a practical and user-friendly guide to some of the more challenging areas of
financial remedy practice. It is divided into detailed parts and contains specialist contributions from a forensic accountant, an actuary and an offshore trust specialist and Sir Peter Singer. In concentrating on complex areas of practice, this edition provides practitioners with assistance in unlocking assets for the benefit of their client.

What's new in this edition

• Fully updated to include the changes brought about by the Family Procedure Rules 2010
• Practical new chapters on offshore trusts and arbitration in family proceedings
• A review of the law of self-help disclosure following Imerman and the lawful routes for disclosure available to parties
• Analysis of all the latest important cases dealing with non-matrimonial property, trusts and company valuations.
• A review of how the law of financial remedies is dealing with the effects of the economic downturn
• An update on the latest tax and pensions issues.

Unlocking Matrimonial Assets on Divorce is an eminently practical publication aimed at specialist ancillary relief practitioners and also those lawyers who only intermittently undertake work in the area.

Simon Sugar
Barrister, 1 Garden Court, London
Simon Sugar was called to the Bar in 1990 after taking a law degree at Warwick University. He is a tenant at 1 Garden Court, Family Law Chambers,Temple. His practice focuses on financial remedy cases, co-habitation disputes and probate and Inheritance Act claims. With a background in Chancery law, Simon is particularly interested in financial remedy cases involving companies, partnerships, trusts and farms; although he also appears in more straightforward cases. Simon contributes regular Finance Case Digests for Resolution’s ‘The Review’ and is a contributor to the 1 Garden Court book on Schedule 1 Claims also published by Family Law. He is a member of both the Family Law Bar Association and , the Chancery Bar. He regularly tweets on family law issues under the name familybarrister.

Andrzej Bojarski
Barrister, Head of Family Team, Head of the Family Finance Team 36 Bedford Row, London
Andrzej Bojarski has practised in family law since 1995.  He is the Head of the Family Team at 36 Bedford Row, where he also heads the Family Finance Team. Although a family law specialist he has a broad common law background and he continues to be instructed in civil litigation, often linked to the financial aspects of relationship breakdown. As a result he is regularly engaged in ancillary relief cases where the married couple’s affairs have become intertwined with the affairs of a third party, such as a company, partnership or trust, or where there are disputes over the ownership of property or other related contractual or commercial disputes.  In addition to his work in financial cases, he acts in public law, private law and international proceedings concerning children.
 

Sir Peter Singer
Until appointment as a Family Division judge in 1993 Sir Peter Singer practised at the Bar, mainly in relation to family financial cases. On retirement from the bench he re-joined 1 Hare Court as an Associate Member. He conducts ‘private' FDRs and is a Resolution-trained mediator and collaborative lawyer. Sir Peter is also an accredited arbitrator recently qualified to conduct arbitrations in accordance with the IFLA Rules. With fellow arbitrators Gavin Smith (also of 1 Hare Court) and Rhys Taylor (of Thirty Park Place Chambers, Cardiff) he has developed the site FamilyArbitrator.com as an information resource about the arbitration process. He co-edits At A Glance and the software programs @eGlance and Capitalise

Contributions by

David Liddell 
Partner, PKF (UK) LLP
David Liddell is a Forensic Services partner at PKF (UK) LLP with over twenty years’ experience of acting as an expert witness or in an advisory capacity in a variety of personal and commercial disputes and fraud investigations. He regularly assists in matrimonial cases where there are businesses to value, complex resources to divide, tax issues relating to the settlement, or allegations of non-disclosure of assets by one of the parties. David is an affiliate member of Resolution and trained in Collaborative Law.


David Lockett Actuary,
David was an Open Scholar at Oxford University, reading Mathematics with Philosophy. He is a Fellow of the Institute of Actuaries, having qualified in 1997 and has worked with Actuaries for Lawyers Ltd since it was formed. David now has 17 years' experience in pensions, of which 14 years have been in occupational pensions, and has been working exclusively on pensions advice for solicitors for 5 years; he has considerable experience acting as an expert witness. ‘Actuaries for Lawyers' is consulted in over 1,000 matrimonial cases per year. David is a member of the Expert Witness Institute and an affiliate member of Resolution.

Mark Renouf Jersey Advocate
Mark studied law at the University of London (QMW). He was called to the English Bar in 1994 and called as a Jersey Advocate in 2001. As a founding partner of Hanson Renouf, Advocates and as an Associate Member of No 5 Chambers, he has dual rights of audience in Jersey and England. He specialises in commercial litigation, including enforcement of foreign orders against Jersey trusts, trust litigation and obtaining urgent injunctions. He has advised in many well known cross-border family trust cases including Minwalla v Minwalla, Whaley v Whaley, BJ v MJ and Mubarak v Mubarik, in the latter of which the Jersey Court of Appeal credited his ‘clarity, precision and thoroughness'.

Introduction

Evidence

• The Law of Evidence in Ancillary Relief Proceedings 

Disclosure

• Disclosure in Financial Remedy Proceedings
• Disclosure from the Parties
• Disclosure from Non-Parties 

Dissipation of Assets

• Preventing Dissipation of Matrimonial Assets
• Setting Aside Dispositions 

Property

• Ownership of Matrimonial Property
• Real Property and the Former Matrimonial Home
• Other Forms of Property 

Businesses

• Companies
• Partnership
• Farms
• Raising Finance from Business Assets 

Trusts 

Inherited Assets, Gifts and Non-Matrimonial Property

• Non-Matrimonial Property
• Property Already Acquired through an Inheritance, Gift or Windfall
• Future Inheritance Prospects 

Pensions

• Introduction
• Types of Pensions
• Pension Orders on Divorce
• Valuation of Pensions 

Tax Implications and Planning 

Dealing with Ancillary Relief in Uncertain Economic Conditions

• Introduction
• Insolvency and Financial Remedies
• Asset Valuation During Times of Economic Instability
• Using Financial Remedies Orders at Times of Economic Uncertainty

Offshore Trusts

Arbitration in Family Proceedings

 Appendices

• Financial Measures and Statistics for Business Valuation
• Calculating Financial Ratios
• Useful Information to Request when Preparing a Business Valuation
• Draft Letter of Instruction to a Forensic Accountant
• Tax Rates, Limits and Reliefs
• Family Procedure Rules 2010, SI 2010/2955
• Matrimonial Causes Act 1973
• Divorce etc (Pensions) Regulations 2000, SI 2000/1123
• Pensions on Divorce etc (Provision of Information) Regulations 2000,
  SI 2000/1048
• Sharing of State Scheme Rights (Provision of Information and
  Valuation) (No 2) Regulations 2000, SI 2000/2914
• Family Law Arbitration Scheme – Arbitration Rules
• Family Law Arbitration Scheme – Form ARB1
• Index

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"a must have book for thoses who are seriously intrested in ancillary relief, it reads relatively easily and explains in well thought out chapters the legal principles with helpful analysis ... extremely helpful chapters ... worth reading through from beginning to end"
Jeff Botterill

"There are some text books which arrive on the market which almost instantly find a place on a practitioner's desk, destined to become a well thumbed and trusted aid. Unlocking Matrimonial Assets on Divorce is one of those books... This book gives the practitioner a head start when considering what to look for in the other party's disclosure, their Form E, what questions to ask, and so on... one of those books where practitioners would benefit form reading it from cover-to-cover... highly readable... This book is already a permanent fixture on my desk and I suspect is destined to arrive on most busy practitioners' desks"
Resolution

"invaluable ... for both novice and experienced matrimonial finance practitioners"
ALC 'click here for a full review'

"If you are a divorce lawyer, this book belongs on your desk… well established work – and not surprisingly – for it is practical, plainly written and full of specialist insights and information from the two authors and their contributors"

"The emphasis, say Sugar and Bojarski, in on ‘the practicalities of finding the assets… protecting them… and generally unlocking their value for the parties… As most divorce cases – even those that seem straightforward at the outset – are apt to reveal unforeseen complexities, every practitioner involved in divorce matters should acquire this book" Click here for a full review
Phillip Taylor MBE and Elizabeth Taylor of Richmond Green Chambers

FOREWORD

In the preface to the second edition of Unlocking Matrimonial Assets on Divorce the authors referred to the law and practice of ancillary relief as‘dynamic’ – little could they know just how dynamic the law and practice would be between editions of their excellent book. In the interim even the name of the legal process which provides for the division of the assets following divorce has changed – no longer ancillary relief but now, with the advent of the Family Procedure Rules 2010, financial remedy proceedings.

Fundamental to the focus of this book with its emphasis on ‘unlocking’ the matrimonial assets, is the impact of Imerman on the so-called ‘Hildebrand rules’, informal ‘rules’ which had, over the years, increasingly held a central place in issues of disclosure in the more complex cases. Courts and lawyers are still finding their way in the post-Hildebrand world, but fortunately the early fears that Imerman would be a charter for non-disclosure seem to have been overstated.

Imerman is not the only major development since the last edition: Radmacher is the decision which attracted the most media attention as the Supreme Court turned its attention to ante-nuptial contracts; but also of considerable significance is Jones v Jones and the developing law on pre-acquired assets. The sands upon which financial remedy proceedings rest continue to shift not least in relation to the finding, protecting and ‘unlocking’ of matrimonial assets in a world where worldwide economic conditions continue to be uncertain at best.

With so many fundamental changes in the law, together with the necessity of determining all cases against the procedural backdrop of the new rules, the third edition will undoubtedly be greatly valued by all those who have benefited from the earlier editions.

The Honourable Mrs Justice Eleanor King
July 2012

PREFACE

At the start of the preface to the second edition of this book we stated that ‘The law and practice of ancillary relief is truly dynamic’. What we hadn’t realised then was that it was so dynamic that it would cease to exist by the third edition. Instead of ancillary relief we now have the law and practice of financial remedies and a new set of family procedure rules to keep us on our toes. The search for certainty has been recently described as the family lawyer’s Holy Grail per Wall LJ (as he then was) in Grey (No 2). The Holy Grail of certainty, searched after by some, less sought after by others, has dominated recent guidance on non-matrimonial property. We are also pleased to record the birth of autonomy – a new sibling for needs, compensation and sharing. Your gestation was long and your birth complicated; but we believe you will grow to be a principle of substance in the years to come. Three years ago we had all understood the Hildebrand rules – although apparently incorrectly. Much then has changed in the three years that have passed since the last edition of this book, although section 25 has throughout been a constant and valued friend (some might say an undervalued friend). The aim of this book, of which the third edition is no different, is to assist family lawyers source and develop arguments to help them unlock assets for their clients. As ever, we hope that we have achieved our aim.

We believe that our aspirations for the book are assisted enormously by the contributions made by David Liddell, David Lockett, Sir Peter Singer and Mark Renouf. Our clerks at 1 Garden Court and 36 Bedford Row have as ever given the third edition of this book their wholehearted support. We thank them all for the sympathetic and skilful way in which they have assisted us in both running a practice and trying to keep to publishing deadlines. Once again we would like to express our thanks for the help, encouragement and commitment given to us from all at Jordan Publishing, but especially Greg Woodgate and Kate Hather. We would also like to thank Tracy Robinson for her work in turning our words into a book. Most of all however, perhaps appropriately as family lawyers, we would like to thank our families. They have put up with the demands made upon our free time without complaint. We have endeavoured to set out the law as at 1 June 2012.

Simon Sugar
Andrzej Bojarski