Spring 2019

No 18 Chambers eBulletin

No Fault Divorce- the proposals, and some potential consequences

The Justice Minister, David Gauke, announced on 9th April 2019 that the government is proposing to introduce legislation to abolish the need for petitioners to prove one of the current facts of desertion, separation, unreasonable behaviour or adultery to establish irretrievable breakdown before obtaining a decree of divorce.

The bones of the proposal are set out in the government’s 57 page response to consultations which can be found at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/

The current proposal is that the sole ground for divorce should be irretrievable breakdown, and that there should be a fixed six month time frame, namely 20 weeks from Divorce Petition to Decree Nisi and a further six weeks before Decree Absolute, although an application could be made to expedite the decrees. There will remain a bar on issuing a petition within a year of marriage. There will be provision for joint applications for divorce. The terms “petitioner”, “Decree Nisi” and “Decree Absolute” will be updated to “applicant”, “conditional order” and “final order”.

It is said that the ability to contest a divorce will be abolished, although it anticipates that an application could still be challenged on the bases of jurisdiction, the legal validity of the marriage, fraud or coercion and procedural compliance. In effect, if one party makes a statement that the marriage has irretrievably broken down, the Court will act on that statement. No doubt this proposal will be strenuously contested by those with strong religious convictions, and/or those who stand to suffer a heavy financial loss upon a divorce.

The proposals provide little or no guidance on the issue of costs. It seems unlikely that the costs in divorce cases will disappear, and who is to pay them in a no-fault system? I doubt whether the Ministry of Justice will abolish its fees.

The proposals are also decidedly sketchy over financial provision, except to indicate that final financial orders will continue to be made after Decree Nisi, and will come into effect on Decree Absolute (or Final Order, as it will become). Family Law Week has pointed out that the 26 week period will leave financial applications to be cleared up months or years after the decree, and that it is unclear what may happen in cases where petitioners are currently advised not to apply for Decree Absolute before financial provision is sorted out, because of inheritance, pension and insurance considerations.

Although the proposals are to be welcomed, there is also a strong human trait for wanting to attribute blame in marriage breakdown, and to have that blame endorsed by a judicial decision.

Those of us old enough to have physically appeared in Court on undefended divorces will remember that petitioners often gained an emotional release from giving evidence of the other party’s wrongdoings, and from their evidence being listened to and believed. The petitioner would also have to explain the arrangements in place for the children, so that the judge could be satisfied that they were appropriate. A subjective impression is that this very solemn (but functionally pointless) ceremony led to significantly fewer bitter contests in those days over money and children.

Despite the Court’s best endeavours to restrict mud-slinging in family matters, it may well be that the proposed no-fault divorce will leave many parties’ grievances stifled and could actually stimulate yet more allegations of bad conduct in children and financial applications.

At the time of writing, there is no timetable for its introduction, but it is said that a Bill will come in “as soon as Parliamentary time allows”. Given the turbulent state of politics at the moment, one should not hold one’s breath. This is not the first time “no fault” proposals have been made. A somewhat different version of “no fault divorce” was contained in the Family Law Act 1996, but was never brought in to force, and another Bill was introduced in 2015 under the 10 minute rule, which failed to make it to the statute book. Despite the unanswered questions, let us hope that this time the reforms will go through.

S4 Inheritance (Provision for Family and Dependents) Act 1975 Applying for permission out of time

There have been two recent decisions relating to the court’s approach to applications under s4 of the Inheritance Act. By virtue of s4, applications under the act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out.

The first decision by Mostyn J is Cowan v Foreman & Ors [2019] EWHC 349 (Fam).

Probate of the deceased's will was granted on 16 December 2016, thus the six month period expired on 16 June 2017. The Claimant brought her claim on 8 November 2018 and therefore required the permission of the court, in order to be able to do so.

Mr Justice Mostyn examined the reasons for the imposition of the six-month rule, before considering how section 4 of the 1975 Act should be applied when faced with an application out of time. He concluded that the court must be satisfied of the following before permission could be granted:

(1) That the Claimant has shown good reasons justifying the delay;
(2) That the Claimant has a claim of sufficient merit to be allowed to proceed to trial.

He reviewed relevant case law. At para 4 of his judgement he said ‘A robust application of the extension power in section 4 would be consistent with the spirit of the overriding objective, specifically CPR 1.1(2)(d) ("dealing with the case expeditiously”), 1.1(2)(e) ("allotting the case an appropriate share of the court's resources") and 1.1(2)(f) ("enforcing compliance with rules”).’

In the other case Bhusate v Patel & Ors [2019] EWHC 470 (Ch) the application some 25 and 9 months out of time was granted. Chief Master Marsh was shown a transcript of Cowan, after writing his judgement but before delivery of it. At the end of his judgement para 64 he said this ‘I would just say, I do not consider it right, when considering the exercise of discretion under section 4, to have regard to the overriding objective in CPR 1.1 or the approach to relief against sanctions In Denton v TH White Ltd (2014) EWCA 906 … to do so I suggest involve conflating issues that, if they are related, are at best distant cousins’

CPR 1.2 states ‘the court must seek to give effect to the overriding objective when it - (a) exercises any power given to it by the rules.

Who was right ?

Financial remedy - lump sum ordered against a third party - treatment of pension entirely acquired before the marriage - specialist financial remedies court

Wodehouse v Wodehouse [2018] EWCA 3009 (Civ)

All cases are fact specific, but will not be recited here, save to say limited charged assets, H had been bankrupted twice and H’s pension provided £8,000pa.

The two issues before the court were:-

a did the DDJ have power to make a lump sum order against a third party (trust)

b did he err in making a 50% pension share order in W’s favour

The leading judgment was given by Lady Justice King. This case was originally decided by a Deputy District Judge, appealed to the Circuit Judge, then the Court of Appeal.

‘The Deputy District Judge had not got the advantage of being a specialist matrimonial finance judge’ - para 47 per Lady Justice King.


Re lump sum, all matrimonial practitioners will be aware of s23(1)(C) MCA ‘either party to a marriage may make to the other a lump sum … as specified’ and that part of the appeal was allowed, this aspect not being ground breaking.

Re the pension. It was argued on H’s behalf that the pension was not a matrimonial asset, having been acquired in it’s entirety before the marriage. Lady Justice King disagreed, and agreed with the circuit judge that the order was ‘clearly within the discretion that a court was likely to consider’ based on needs.

Re specialist financial court. The president agreed with King LJ. He also said ‘This case did not receive an adjudication that met with the requirements of the law relating to financial relief’ … ‘I hope that this decision is evidence of the value of creating a Financial Remedies Court - currently being piloted’.

Comment: This is a case to remember when dealing with pensions and the comments on specialist finance courts.

'Joint’ appointed expert (mortgage/financial adviser) for the parties mortgage illustrations

In financial remedy proceedings it is increasingly the case that the clients can only afford limited advice.

Often that results in an online mortgage illustration, being obtained by the client in the first instance.

Online quotes are unreliable, but they can be a guide if the information they are based on is correctly supplied.

There are often arguments in cases about the value of this or that, but a small error or omission in the input information for an online quote can multiply into thousands when converted into a mortgage illustration. It is a very important piece of information. I have dealt with cases where a party has ‘hidden’ behind a low mortgage illustration, which in effect reduces the financial assets at the disposal of the court. The trouble is that when it comes into my hands, it is normally for a hearing the next day and neither party wants or can afford to have, the hearing adjourned, so appropriate illustrations can be obtianed. It is hoped that with the standard direction below, mortgage illustrations will be dealt with at an early stage, and online illustrations be given the caution they deserve.

In the last couple of cases I have dealt with, I have suggested that the solicitors approach the same financial adviser, so that each client is satisfied that there is transparency, and the expert knows he should not ‘over egg the pud’ in respect of a single client. I appreciate that it may not always be possible, and a client may object, but what good reason should they have?

The current direction at financial dispute appointment stage is:-

Each party shall serve on the other party evidence of their mortgage raising capacity by * on *, such evidence to be in the form of a certificate from a mortgage broker or independent financial adviser indicating:-

i the maximum mortgage that the broker believes he/she will be able to secure

ii the financial information on which the mortgage advice is based

iii the repayments that would be required on that mortgage on a repayment basis and on an interest only basis

iv the minimum deposit that would be required to secure that level of borrowing

Cooperation between lawyers can only help the clients costs, so perhaps a ‘joint instruction’ might be helpful?

Nikah ceremony - valid or void marriage?

In the recent case of Akhter v Khan [2018] EWFC 54, Williams J recognised a Nikah (an Islamic marriage ceremony) conducted in the UK as falling within English law, even though there was no civil ceremony. The Judge concluded that the marriage was void as the marriage failed to comply with the law for creating a legal marriage in the UK on the grounds contained in MCA s 11 (a) (iii) ‘the parties have intermarried in disregard of certain requirements as to the formation of marriage’. That enabled a decree of nullity, meaning the wife would be able to make a financial remedy claim.

A Nikah is a muslim ceremony, and there are few formalities, and can even be conducted in the absence of one of the parties. In the UK and in the States for example, many Nikahs are followed by a civil ceremony, which then gives legal recognition to a valid marriage, with associated rights.

The position with regard to a Nikah conducted abroad but without a civil ceremony was ventilated in Muhamed v Knott 1968 2 All E R 563.

In Mohamed a 26 year old man and 13 year old bride went through went through a ceremony in Nigeria according to Moslem law, and moved to England. The word Nikah does seem to appear in this case. One question, in the case stated, was whether the justices were right in law in concluding that the marriage was not one recognised as valid by the English courts for the purposes of the question before them. Expert (professor) evidence was that this was a recognised marriage in Nigeria. Parker CJ upheld that this ceremony would be recognised as a marriage in England.

Every case is fact specific, in Akhter, for example, the judge recited the issue:- namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law.

H and W went through a Nikah ceremony in England in 1998. W issued a divorce petition and H argued the Nikah should be viewed as a blessing and not a marriage recognised in English law.   Prior to coming to England, in order to live in the UAE with W, they had to satisfy the UAE authorities they were married. Contrast that H’s defence to W’s petition that they weren’t married.

Judges do not like people who run with the hare and the hounds.

However, it seems the law is in the rather ambiguous state whereby a Nikah can have a different status, depending on where it took place.