ENGLAND & WALES Trends and Developments Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
home, an asset that typically stands in a category of its own. • When the evidence does not establish a clear dividing line between matrimonial and non- matrimonial property, the court is required to take a nuanced approach and must consider whether the asset should have the same character as the assets built up during the parties’ joint endeavour of marriage, such that it should attract the sharing principle. • If an asset does fall within the matrimonalised category, it does not follow that it should be shared equally between the parties. Anna Standish’s appeal was dismissed and Clive Standish’s appeal was allowed. The court of appeal remitted the case back down to the High Court to undertake an assessment of Anna Standish’s needs (as Mr Justice Moor did not undertake a needs assessment) in order to decide whether GBP25 million would meet her needs. Points to note for practitioners The Standish decision demonstrates clearly that the source of an asset – rather than the legal title – is the critical factor in categorising assets in financial remedy proceedings and that the con - cept of matrimonalisation is to be used narrowly. It is being appealed to the Supreme Court, as it obviously has very widespread application. In the meantime, it is therefore important for prac - titioners to: • ask the client for specific details on the source of assets in the case at the initial client meeting, so that the parameters of settlement are known as quickly as possible; • understand the “journey” an asset has taken during a marriage; and
• ensure that there is a “joined-up” approach between lawyers and other professionals, such as tax advisers or wealth planners. Role of conduct in financial remedy proceedings Section 25 of the above-mentioned Matrimonial Causes Act 1973 specifies the factors that the Family Court must have regard to when dividing assets upon divorce. One of these factors is “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it” (Section 25(2)(g)). There is no statutory definition of conduct; how - ever, it refers to bad behaviour of one or both spouses. The Family Court has historically been reluctant to consider conduct in financial remedy pro - ceedings, reserving it only for the most severe cases. Judges have been cautious not to con - duct a “rummage through the attic of the mar - riage” (G v G (2002) EWHC 1339 (Fam), (2002) 2 FLR 1143). Conduct has therefore been reserved for only the most serious cases – ie, those with a “gasp” factor, not just a “gulp” factor (S v S (Non-Matrimonial Property: Conduct) (2006) EWHC 2793 (Fam), (2007) 1 FLR 1496). This is now being revisited. There is debate among practitioners over the role conduct should play in financial remedy proceedings. This ten - sion was identified in the Law Commission’s recent scoping paper, “Financial Remedies on Divorce and Dissolution”. Cultural shifts that have shone a light on the devastating impact of domestic abuse and the various, sometimes subtle, forms that domestic abuse can take. This has led to legislative reform – most notably, the Domestic Abuse Act 2021, which created a statutory definition of domestic abuse (includ - ing economic abuse) in Section 1 thereof. Some
139 CHAMBERS.COM
Powered by FlippingBook