15 January 2025

Divorce, Reconciliation, and the Court’s Discretion: Insights from HK v SS [2025] EWFC 5

The recent case of HK v SS offers valuable lessons on how courts handle divorces complicated by reconciliation attempts and the delayed application for a final order. This case is particularly notable because it explores the court's discretion under the Divorce, Dissolution, and Separation Act 2020 (DDSA 2020) when parties reconcile after a conditional order is granted but separate again.

Case Background

The parties, married for 11 years, separated in 2022, and the wife filed for divorce under the DDSA 2020. The process progressed smoothly, with a conditional order granted in October 2022. However, instead of applying for a final order, the parties reconciled in March 2023, resuming life together for 15 months before separating again in June 2024. The wife applied for the conditional order to be made final in August 2024.

The case raised an important question: How should the court exercise its discretion when reconciliation occurs between the conditional order and the application for a final order?

Legal Framework for Divorce in England

The Divorce, Dissolution, and Separation Act 2020 reformed divorce law in England, introducing "no-fault divorce" and simplifying the process.

  1. Conditional Order:
    After 20 weeks of filing, the applicant can apply for a conditional order. The court ensures procedural compliance before granting it.
  2. Final Order:
    The final order can be applied for six weeks after the conditional order. If over 12 months pass, the applicant must provide an explanation for the delay.
  3. Court’s Discretion:
    The court has discretion to refuse the final order if subsequent events invalidate the original basis for divorce (e.g., long-term reconciliation).

Court’s Decision in HK v SS

  1. Reconciliation vs. Irretrievable Breakdown:
    The court held that reconciliation lasting under two years does not automatically negate the irretrievable breakdown of marriage declared at the conditional order stage. Judge Simmonds emphasised that reconciliation is a gradual process that parties should be encouraged to attempt without fear of invalidating the divorce application.
  2. Guidance for Couples:
    • Reconciliations under two years generally do not prevent final orders unless there is clear evidence that the marriage has been fully repaired.
    • Reconciliations beyond two years could be viewed as evidence that the marriage no longer meets the criteria for irretrievable breakdown.
  3. Avoid a 'Computer Says No' approach:
    Refusing the final order would serve little purpose since either party could initiate new divorce proceedings immediately. The court prioritised practicality over procedural rigidity.

Key Lessons for Family Lawyers

  1. Importance of Timing:
    Delays in applying for final orders after conditional orders should be accompanied by clear explanations, particularly when reconciliation occurs.
  2. Encouragement of Reconciliation:
    The judgment highlights a balanced approach, allowing couples to attempt reconciliation without the looming threat of losing progress in divorce proceedings.
  3. Wide Discretion of Courts:
    Courts retain broad discretion to address unique circumstances, ensuring that the process remains fair and reflective of the parties’ realities.

Conclusion

HK v SS reinforces the flexibility and understanding of England’s no-fault divorce framework. It showcases how courts prioritise fairness and practicality, even in cases complicated by reconciliation. For practitioners, the case underscores the importance of advising clients about the implications of reconciliation and the procedural nuances of the Divorce, Dissolution, and Separation Act 2020.

10 January 2025

Balancing Needs and Inherited Wealth: Lessons from ST v AR [2025] EWFC 4

In a recent case, one of the first to be reported in 2025, HHJ Vincent tackled one of the most intricate financial remedy cases of recent times. At the heart of ST v AR [2025] EWFC 4 were disputes over inherited wealth, matrimonialisation, and the claimant's financial needs post-separation. The decision sheds light on how courts approach such complex scenarios, offering invaluable insights for practitioners. It is one of the first big money cases to be determined following the Court of Appeal decision in Standish v Standish last year.

Key Facts

  • The husband, a 70-year-old sculptor, benefited from a substantial inheritance held in private equity-managed properties.
  • The wife, 51, had not worked for most of the relationship, relying on her husband’s resources.
  • Their combined lifestyle was one of considerable affluence, involving private jets, yachts, and extensive staff.
  • The couple shared a child, whose financial future was secured through significant trust funds.

Despite the wealth, the wife’s claim was adjudicated on the basis of needs rather than a sharing claim, as the husband’s assets were deemed predominantly non-matrimonial. The wife was awarded 65% of the liquid assets (which represented 9% of the total assets), by reference to her needs.

The Central Issues

  1. Inherited Wealth and Matrimonialisation:
    • The husband argued that his inherited wealth, which he passively managed, should remain non-matrimonial.
    • The court supported this view, finding no evidence that the assets had been intermingled or actively traded in a manner that would render them matrimonialised.
  2. Assessing Needs:
    • While the wife proposed a housing fund of £4.4 million and capitalised maintenance of over £14 million, the court assessed her reasonable needs more conservatively.
    • The court scrutinised past spending habits but focused on ensuring her future financial security while reflecting the family’s historical standard of living.
  3. Housing and Lifestyle:
    • The family home was valued at £3.6 million. Both parties sought its transfer, but the court balanced housing needs equitably, emphasising the child's welfare.

Significant Principles from the Case

  • Matrimonialisation of Non-Marital Assets: As clarified in Standish v Standish [2024] EWCA Civ 567, matrimonialisation must be applied narrowly. In this case, the husband's passive investment approach reinforced the non-matrimonial status of his inheritance.
  • The Needs Principle: The court emphasised that even substantial non-matrimonial wealth could only be drawn upon to meet reasonable needs, with no entitlement to a sharing claim absent specific justification.
  • Complex Asset Structures: With investments tied up in LLCs and private equity, the court acknowledged these as illiquid assets, factoring tax liabilities and investment restrictions into the overall valuation.

Why This Case Stands Out

  1. The Interplay of Needs and Inherited Wealth: Courts often grapple with balancing respect for non-matrimonial wealth with meeting the needs of the financially dependent spouse. This case exemplifies that delicate exercise.
  2. Pragmatism in Awards: The judgment reflected a tailored approach, considering the wife’s long-term security while not overreaching into non-matrimonial funds.
  3. Luxury Meets Litigation: Details such as the husband’s yacht and a portfolio worth tens of millions underscore the complexities in adjudicating ultra-high-net-worth divorces.

Key Aspects for Practitioners

  • When assessing claims against inherited wealth, the court will closely examine the asset's source, use, and whether it has been "woven into" the matrimonial fabric.
  • Illiquid assets present significant challenges in valuation and enforceability of awards, necessitating clear and robust evidence.
  • While the needs principle remains paramount in high-net-worth cases, courts ensure that awards reflect realistic post-separation financial independence.

This case adds another layer to our understanding of financial remedies, particularly in the context of wealth preservation and the concept of matrimonialisation. It serves as a valuable reminder of the court’s nuanced, fact-specific approach to achieving fairness in divorce proceedings.

10 January 2025

A Litigant’s Guide to Financial Fairness

Navigating financial settlements during divorce can be overwhelming, especially for litigants in person. The Family Justice Council’s March 2024 guide, "Sorting Out Finances on Divorce," serves as an essential resource for individuals seeking clarity in an often-confusing process.

Key Principles of Financial Settlements

  1. Prioritising children’s welfare: The law mandates that the needs of children come first, ensuring stable housing and financial support.
  2. Meeting financial needs: Settlements aim to provide both partners with housing and income to meet their reasonable needs, considering factors like age, earning capacity, and standard of living during the marriage.
  3. Achieving a “clean break”: Wherever possible, the goal is to enable financial independence post-divorce, though this may not always be feasible.

Practical Guidance for Litigants

The guide emphasises transparency and cooperation:

  • Full financial disclosure: Both parties must provide complete information about their assets and income to facilitate fair negotiations.
  • Consent orders: Turning agreements into binding court orders ensures enforceability and prevents future disputes.
  • Accessing support: While legal aid is limited, resources like mediation can provide affordable pathways to resolution.

Empowering Litigants

By demystifying complex legal principles and offering real-world examples, the guide empowers individuals to negotiate fair settlements. However, it also underscores the need for systemic reforms to make the process more accessible and equitable.

Financial fairness shouldn’t be a privilege reserved for those with legal representation—it’s a right for all.

9 January 2025

The Law Commission’s Vision for Certainty and Fairness

The Law Commission’s December 2024 Scoping Report ‘Financial remedies on divorce and dissolution’ takes a comprehensive look at the legal framework governing financial remedies on divorce and dissolution in England and Wales. While the Matrimonial Causes Act 1973 provides the statutory basis, its reliance on judicial discretion has led to significant criticisms.

Key Criticisms of the Current Law

  • Uncertainty: Wide judicial discretion creates unpredictable outcomes, making it difficult for divorcing couples to negotiate settlements or predict court decisions.
  • Lack of clarity: Concepts like “needs” and the distinction between matrimonial and non-matrimonial property remain nebulous, often leading to confusion and dispute.
  • Barriers to justice: High legal costs and complex procedures deter many couples from seeking court intervention.

Proposals for Reform

The Commission identified four potential models for reform, emphasising fairness and accessibility:

  1. Codifying financial needs: Defining “needs” to provide clearer guidance for practitioners and judges.
  2. Enhancing predictability: Introducing statutory guidelines for asset division to reduce reliance on case law.
  3. Strengthening ADR mechanisms: Promoting mediation, arbitration, and other forms of dispute resolution to minimise litigation.
  4. Addressing inequalities: Ensuring fair treatment of non-matrimonial property and compensating for economic disadvantages arising from marriage roles.

A Path Forward

The Scoping Report stops short of making recommendations but provides a robust foundation for future reform. By aligning with international best practices and prioritising equitable outcomes, these proposals could transform the financial remedies landscape.

Certainty and fairness must become the cornerstones of the approach to financial settlements.

8 January 2025

Domestic Abuse and Economic Justice

The October 2024 Resolution Report ‘Domestic abuse in financial remedy proceedings’ sheds a critical light on the intersection of domestic abuse and financial remedy proceedings in the UK. It highlights how economic abuse—a form of coercive control where abusers manipulate financial resources—can extend well beyond the end of a relationship. Victim-survivors often face continued abuse through delayed settlements, hidden assets, and non-compliance with court orders.

The Scale of the Problem

Resolution’s survey revealed that 80% of family law professionals believe that domestic abuse, specifically economic abuse, is insufficiently addressed in financial remedy proceedings. This issue is even more pronounced for unmarried families, where existing legal frameworks fail to offer adequate protection.

Victim-survivors shared harrowing accounts, such as being forced to continue paying for a jointly owned home they cannot access or facing adjourned hearings despite clear evidence of abuse. These experiences emphasise the urgent need for systemic change.

Recommendations for Reform

Resolution’s report calls for:

  • Strengthening procedural safeguards: Amending the Family Procedure Rules to ensure that domestic abuse considerations are embedded in case management.
  • Improved disclosure processes: Holding parties accountable for failing to provide full and frank disclosure early in negotiations or court proceedings.
  • Access to justice: Expanding legal aid availability for victim-survivors and reviewing financial thresholds that currently block access to representation.

Towards Cultural Change

Achieving meaningful reform requires a cultural shift among family law professionals. Training, clear guidelines, and a collaborative approach between the judiciary and practitioners can ensure that abuse is recognised and addressed effectively. The report’s recommendations aim to empower victim-survivors, promote fair outcomes, and ensure the justice system is no longer complicit in enabling ongoing abuse.

Domestic abuse doesn’t end with separation—and neither should the protections offered by the law.

3 January 2025

Arbitration Awards in Financial Remedies: Lessons from On v On [2024] EWFC 379

The case of On v On sheds light on the crossover of arbitration awards and court oversight in financial remedy proceedings. It highlights the continuing duty of full and frank disclosure, the importance of factual accuracy in arbitration, and the risks of non-compliance. The case serves as a cautionary tale for parties considering arbitration in divorce cases, especially regarding transparency and the court’s ability to intervene.

Case Overview

In this case, the parties, married for over 24 years, opted for arbitration to resolve their financial disputes. Following the arbitrator's decision, the wife challenged the award, citing fraudulent non-disclosure by the husband. She argued that his failure to disclose accurate business valuations and other material financial details undermined the fairness of the award.

The court agreed, setting aside the arbitration award and revisiting the financial arrangements. The case involved complex considerations, including substantial discrepancies in business valuations and contentious claims about financial misrepresentations.

Key Legal Principles

  1. Duty of Full and Frank Disclosure

The court reinforced the principle that the duty of disclosure extends beyond the arbitration hearing until the court approves the resulting order. Judge Booth ruled that this duty is continuous and includes the period between the arbitration award and its enforcement as a court order. The decision highlights that even arbitration does not shield parties from their disclosure obligations.

  1. Standard for Setting Aside Awards

To challenge an arbitration award, the applicant must demonstrate material non-disclosure or procedural unfairness that would have altered the outcome. Here, the husband's misrepresentations about his company’s financial performance—disclosing projected losses when the business ultimately made significant profits—constituted material non-disclosure.

  1. Court Oversight of Arbitration

While arbitration offers a private and binding mechanism, its outcomes are not immune to judicial scrutiny. The court may review the fairness of an award and adjust it where necessary to ensure compliance with the principles of the Matrimonial Causes Act 1973. This decision underscores the court's role as the final arbiter in ensuring fairness.

Key Lessons from the Case

  1. Transparency is Paramount

Parties entering arbitration must ensure complete and accurate disclosure of their financial circumstances. Misrepresentation, even if unintentional, can lead to significant delays, additional legal costs, and the potential setting aside of awards.

  1. Court Supervision of Arbitration

This case demonstrates the importance of judicial oversight in family arbitration. Arbitration agreements may expedite resolution, but they cannot bypass the statutory principles governing financial remedies.

  1. Costs and Risks of Misrepresentation

The financial consequences of non-compliance can be severe. In this case, the husband was found to have deliberately withheld information, resulting in a costly and protracted legal process.

Practical Considerations for Practitioners

  • Advise Clients on Disclosure: Clients must be aware of their continuing duty to disclose, even after an arbitration award is issued.
  • Understand the Risks: While arbitration can save time, it does not eliminate the need for transparency and procedural compliance.
  • Focus on Materiality: Challenges to awards must focus on material issues that would significantly alter the outcome, rather than minor discrepancies.

Conclusion

The judgment in On v On serves as a reminder that arbitration, while valuable, requires the same degree of rigour and transparency as court proceedings. For family law practitioners, the case underscores the importance of thorough preparation and honest disclosure when guiding clients through arbitration or financial remedy disputes. It also reaffirms the court’s role as a safeguard against unfair outcomes in matrimonial finance cases.

2 January 2025

Prioritising Disability Needs in Divorce: Insights from V v V [2024] EWFC 380 (B)

Disability often adds a profound layer of complexity to divorce proceedings, as courts must balance fairness with the unique and often urgent needs of disabled parties. In V v V [2024] EWFC 380, the court faced this challenge head-on, deciding how to divide limited resources between a tetraplegic husband and a wife with two young children. The case underscores how the law adapts to prioritise disability needs in financial remedy disputes, using tools like Mesher orders and asset redistribution.

The Human and Legal Dilemma

Mr. V, rendered tetraplegic by a tragic accident, occupied the former matrimonial home (FMH), which had been adapted to meet his extensive care needs. Mrs. V, the primary caregiver for their two children, lived in rented accommodation, seeking a share of the FMH’s equity to rehouse herself and the children. With limited assets, the court had to balance two competing needs: the children’s welfare and Mr. V’s life-sustaining requirements.

How the Court Addressed Disability

  1. The Adapted Home as a Necessity:
    The FMH had been extensively modified to accommodate Mr. V’s disability, including specialised equipment and structural changes. The court recognised that selling the property would jeopardise his ability to live independently and receive the necessary care.

Judge Booth noted that the FMH was not just a home but a critical component of Mr. V’s care plan. Its retention was essential for his physical and emotional well-being, justifying the decision to prioritise his needs over immediate financial redistribution.

  1. Mesher Order to Defer Sale:
    The court applied a Mesher order, deferring the sale of the FMH until Mr. V no longer required it, such as upon his death or a transition to institutional care. This ensured his housing stability while preserving Mrs. V’s interest in the property for eventual realisation.
  2. Adjusting Shares to Reflect Competing Needs:
    Recognising Mrs. V’s delayed access to equity, the court awarded her 75% of the FMH’s future proceeds, leaving Mr. V with 25%. This adjustment balanced his current needs with her long-term financial security.

Key Principles from the Judgment

  1. Disability as a Central Factor:
    The court emphasised that disability needs often outweigh other considerations, such as achieving an immediate clean break. This aligns with previous rulings like Wagstaff v Wagstaff [1992] 1 WLR 320 and Mansfield v Mansfield [2011] EWCA Civ 1056, which affirmed the primacy of ensuring suitable housing and care for disabled parties.
  2. Balancing Limited Resources:
    With insufficient assets to fully meet both parties’ needs, the court carefully apportioned resources to achieve fairness over time rather than immediate equality.
  3. Child Welfare in Context:
    While child welfare is a primary consideration under Section 25 of the Matrimonial Causes Act 1973, the court concluded that Mr. V’s retention of the FMH did not compromise the children’s housing stability, as Mrs. V could continue renting suitable accommodation.

Lessons for Practitioners

  • Disability Impacts the Legal Considerations: Practitioners must emphasise the importance of disability-related needs when advising clients or making submissions to the court.
  • Mesher Orders as a Flexible Tool: This case reinforces the utility of deferred sale orders to accommodate unique circumstances while preserving financial equity.
  • Transparency in Needs Assessment: Both parties should provide detailed evidence of their needs, especially in cases involving disability or specialised care requirements.

Conclusion

V v V [2024] EWFC 380 (B) is a compelling example of how courts navigate the intersection of law, disability, and fairness in financial remedies. By prioritising Mr. V’s disability needs while safeguarding Mrs. V’s future financial interests, the judgment highlights the court’s commitment to achieving equity in complex and emotionally charged circumstances. For family law practitioners, the case serves as a poignant reminder of the adaptability of legal principles in the face of human challenges.

30 December 2024

Divorce UK – Your Essential Guide to Navigating Laws, Finances, and Family Life

Divorce can be one of the most challenging times in anyone’s life. Whether you’re considering it, in the middle of proceedings, or nearing the end of the process, understanding your rights and options is crucial. This post aims to give you a comprehensive guide to help simplify the complexities of divorce, covering everything from legal steps to financial considerations.

Understanding the Legal Basics of Divorce

Divorce is the legal dissolution of a marriage. With the introduction of the no-fault divorce law, couples no longer need to assign blame to end their marriage. The process generally involves:

  1. Filing a Divorce Application: This is done through the government’s online portal or via paper forms.
  2. Conditional Order: Previously known as the decree nisi, this confirms that the court sees no reason the divorce cannot proceed.
  3. Final Order: This is the last step, officially ending the marriage.

It’s essential to seek advice from an experienced divorce lawyer to ensure the process runs smoothly and your interests are protected.

Financial Settlements: Securing Your Future

One of the most significant aspects of divorce is reaching a financial settlement. This includes dividing assets such as property, savings, and pensions. Here are key elements to consider:

  • Financial Orders: These are court-approved agreements outlining how finances will be split.
  • Divorce Pensions: Many people overlook pensions, but they can be among the most valuable assets in a marriage.
  • Divorce Settlements: Aim for a fair division based on contributions, needs, and future earning potential.

A solicitor, often in conjunction with a financial adviser can help you navigate these discussions and reach an agreement that ensures financial security.

Parenting Through Divorce

For couples with children, co-parenting arrangements are a priority. The court’s primary concern will always be the child’s welfare. Options include:

  • Mediation: This involves working with a neutral third party to reach an agreement about childcare arrangements.
  • Parenting Plans: A written agreement outlining how you’ll share responsibilities post-divorce.

If disputes arise, the family court can issue orders to resolve issues such as with whom the child should live, and the contact arrangements with both parents.

Navigating Religion and Divorce

For individuals with specific religious considerations, divorce may involve additional steps. For example:

  • Islamic Divorce: Muslims may need to obtain both a civil divorce and an Islamic talaq.
  • Other Faiths: Speak to your religious leader for guidance on faith-specific requirements.

Balancing civil and religious obligations is essential to ensure both are respected.

Divorce in Scotland: What’s Different?

If you are divorcing in Scotland, there are some differences in legal processes compared to England and Wales. For example, the grounds for divorce and financial settlement rules vary slightly. Consulting a solicitor familiar with Scottish law is highly recommended.

Online Divorce: Convenience at Your Fingertips

The rise of online divorce services has made the process quicker and more affordable for many couples. While it’s not suitable for every situation—especially where children or significant assets are involved—it can be a viable option for simpler cases. Ensure the service you use is reputable and provides access to legal advice if needed.

When Mediation Is the Best Option

Mediation offers a less confrontational way to resolve disputes. This process can save time, reduce costs, and help maintain amicable relationships. A trained mediator can assist with:

  • Dividing finances
  • Child arrangements
  • Communication strategies moving forward

Preparing for Life After Divorce

Divorce isn’t just about ending a marriage; it’s about starting a new chapter. Consider these steps to rebuild:

  • Legal Review: Update wills, title deeds, and financial accounts.
  • Emotional Support: Seek counselling or join support groups to help with the transition to your new life.
  • Financial Independence: Create a budget, set goals, and consult a financial planner if needed.

Common Pitfalls to Avoid

  • Rushing the Process: Ensure you fully understand the implications of any agreement. Seek legal advice as soon as possible to ensure that you receive the best possible financial settlement.
  • Ignoring Pensions: These can be a substantial part of your financial future. Do not ignore claims for pension share between you and your spouse.
  • DIY Divorce Without Advice: While tempting, this can lead to costly mistakes. Don’t fall into the ‘remarriage trap.’ You should ensure that all financial claims are addressed at the same time as the divorce.

Conclusion

Divorce is never easy, but with the right guidance and support, you can navigate this challenging time successfully. Whether you’re just starting or seeking advice on complex matters like financial settlements or child arrangements, professional help is invaluable. Reach out to a trusted solicitor to ensure your rights are protected and your future is secure.

Need advice tailored to your situation? Contact us today to start planning your next steps.

 

Resources

To enhance your understanding of divorce-related matters in the UK, here are some trusted links to helpful online resources:

  • GOV.UK Divorce Guidance: For official information on the divorce process, including eligibility, applications, and forms, visit GOV.UK.
  • Resolution: A network of family law professionals committed to a constructive approach to divorce and separation. James Thornton is a member of Resolution and adopts the Code of Practice. Learn more at Resolution.
  • UK Parliament News: Stay informed on legislative updates affecting divorce law via the UK Parliament News.
  • National Archives: Explore historical and legal records related to divorce in the UK at the National Archives.

20 December 2024

Cohabitation, Gifts, and the Kimber Factors: Key Lessons from HKW v CRH [2024] EWFC 358

The recent case of HKW v CRH sheds light on how courts treat cohabitation, marital assets, and post-separation gifts in financial remedy proceedings. By examining pre-marital cohabitation through the lens of the Kimber factors and scrutinising financial gifts made during and after the marriage, the court ensured a fair division of assets while emphasising the importance of transparency in financial matters.

Cohabitation and the Kimber Factors

One of the central issues in the case was whether the parties' cohabitation (1993 to 2007) should be included in the relationship’s overall duration. The husband argued that cohabitation began much later, in 2004, seeking to limit the classification of assets as matrimonial.

To resolve this, the court applied the Kimber factors (Kimber v Kimber [2000] 1 FLR 383), which assess whether pre-marital cohabitation should count as part of the marriage. Key evidence included shared property investments, photographs of family milestones, and the presence of children during this period. Judge Rose found that cohabitation indeed began in 1993, significantly extending the marital timeline and classifying a greater portion of the assets as matrimonial.

The Role of Gifts in Financial Remedy

Gifts also played a pivotal role in the case, particularly in the context of post-separation financial transfers. The husband made significant payments to the couple’s adult children, claiming these were either loans or legitimate gifts. Key points from the judgment include:

  1. Scrutiny of Post-Separation Gifts:
    The court closely examined transfers such as €80,000 to ARC and £26,689 to ARD. These transactions were deemed deliberate attempts to diminish the marital pot rather than genuine acts of generosity.
  2. Addback for Dissipation:
    When the court identifies that financial transfers unfairly reduce the assets available for division, it can “add back” these amounts into the marital pot. Here, the disputed gifts were added back, ensuring fairness in asset division.
  3. Intent and Documentation:
    The lack of clear documentation supporting the husband’s claims weakened his case. The court emphasised that financial transparency is essential, particularly when large sums are transferred to third parties.

Property and Pension Disputes

Other contentious issues included the treatment of properties and pensions:

  • Properties: Assets, initially purchased by the wife under a right-to-buy scheme, were later sold, and the proceeds reinvested jointly. The court classified these as matrimonial assets due to their integration into the family’s finances.
  • Pensions: Despite the husband’s argument to exclude part of his pension as non-matrimonial, the court included its entirety, reflecting its accrual during the extended marital timeline.

Key Takeaways for Practitioners

  1. Cohabitation Evidence Matters:
    Clients should prepare detailed evidence to establish the nature and timeline of their relationships, particularly for disputes involving the Kimber factors.
  2. Gifts Require Transparency:
    Any financial gifts or transfers made during or after the marriage must be clearly documented. Otherwise, they risk being treated as dissipation and added back into the marital pot.
  3. Fairness Prevails Over Categorisation:
    The court’s approach to properties, pensions, and gifts underscores its focus on achieving fairness rather than strict adherence to labels like matrimonial or non-matrimonial.

Conclusion

HKW v CRH highlights the court’s commitment to fairness and transparency in financial remedy cases. From scrutinising cohabitation through the Kimber factors to addressing dissipation through post-separation gifts, the judgment emphasises the importance of a full and honest disclosure of assets. For family lawyers, this case serves as a valuable guide for managing complex financial disputes involving cohabitation, gifts, and asset classification.

18 December 2024

Hemain Injunctions: Preserving the Status Quo in International Divorce Disputes

The case of T v B [2024] EWHC 3251 (Fam) offers valuable insights into the use of Hemain injunctions in family law. It highlights the English court’s approach to preventing one party from gaining an unfair advantage by manipulating parallel divorce proceedings in multiple jurisdictions. Here, we explore the purpose of Hemain injunctions, their application, and their significance in international family law.

What is a Hemain Injunction?

A Hemain injunction is a type of interim measure designed to maintain a level playing field when parallel proceedings are ongoing in different jurisdictions. Unlike a permanent anti-suit injunction, a Hemain injunction aims to pause substantive proceedings in a foreign court until preliminary issues, such as jurisdiction, are resolved in England. The principle was first established in Hemain v Hemain [1988] 2 FLR 388 and further refined in S v S (Hemain Injunction) [2009] EWHC 3224 (Fam).

In essence, this injunction ensures that neither party can “steal a march” by advancing their case in one court while delaying proceedings in another.

The Case of T v B

In T v B, the wife sought a Hemain injunction to restrain the husband from progressing divorce proceedings in a foreign jurisdiction (Territory Y), arguing that England was the appropriate forum. The husband had used the time between being notified of the wife’s intention to file for divorce and her formal application to establish jurisdiction in Territory Y. This included renting a flat and securing employment there, enabling him to issue proceedings in what he viewed as a more favourable forum.

The court found that the husband’s actions were “vexatious, oppressive, and unconscionable,” as he had effectively stalled the wife’s English divorce proceedings by raising jurisdictional challenges while advancing his own case abroad.

Key Principles from the Judgment

  1. Preservation of the Status Quo:
    Hemain injunctions are designed to ensure fairness when two courts are considering the same matter. The aim is not to prevent foreign proceedings indefinitely but to ensure that both courts resolve jurisdictional issues before substantive matters are addressed.
  2. Forensic Advantage:
    The court highlighted that the husband was trying to exploit procedural delays in England to gain an advantage in Territory Y, which justified the injunction.
  3. Focus on Fairness:
    The judgment emphasised that the injunction does not resolve the jurisdictional issue but prevents one party from advancing their case unfairly.

Why Does This Matter to Family Law Practitioners?

  1. International Disputes:
    Hemain injunctions are particularly relevant in cases where spouses have connections to multiple countries, a growing trend in a globalised world. Practitioners must be prepared to address jurisdictional challenges swiftly.
  2. Timing and Transparency:
    The case underscores the importance of acting promptly and transparently when initiating proceedings. Delays or concealment can lead to adverse inferences.
  3. Strategic Use of Remedies:
    Hemain injunctions offer a practical tool to protect clients from being disadvantaged by procedural tactics in international disputes.

Conclusion

The T v B case illustrates the crucial role of Hemain injunctions in international family law. By preventing one party from advancing their case unfairly, these injunctions uphold the principles of fairness and comity. For practitioners, understanding their application is essential for effectively managing jurisdictional disputes and ensuring equitable outcomes for clients navigating cross-border divorces.

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