Update: family

The combination of entering a new year and news that we are officially coming out of an unparalleled recession has led to reports that the divorce rate is set to surge.

Whether or not, as practitioners, we are yet experiencing an unusually high number of new enquiries, it is likely that the recent rises in property prices will impact on the divorce rate. As confidence in the market begins to increase, it may well be that an increase in petitions issued will follow.

In addition to the prospect of an increase in divorce enquiries generally, there have been reports of a rise in the number of clients wishing to have pre-nuptial agreements and/or cohabitation agreements drawn up within the collaborative process. This seems a sensible development, and such agreements drawn up with the parties clearly on an equal footing are more likely to be upheld by the court as it will be more difficult for parties to present arguments about coercion or inequality.

In any event, the use of a client-led process which involves the parties meeting together with their respective lawyers seems more appropriate to the drawing up of an agreement which is something to be celebrated at the outset of a relationship.

Use of documents

In the February 2009 update (Solicitors Journal 153/5, 10 February 2009) we considered the claim brought by the celebrity chef, Marco Pierre White, against his estranged wife's solicitors, Withers (White v Withers & Anor [2008] EWHC 2821 (QB)). Though the divorce is yet to be finalised, the litigation surrounding the case and the disclosure of documents continues.

During the financial negotiations, the wife provided her solicitors with various letters and documents which Mr White claims she intercepted from his mail. The documents included, among others, a contract from P&O and a letter from Mr White's daughter, Letty, his daughter by previous marriage. Altogether, 42 documents were removed and provided to Withers. The wife claims that the papers were taken as a result of threats made by her husband that he would prevent her from having any money if they were to separate and in fact that he would leave the country.

Mr White claims that it was at the behest of Withers that the papers were taken by the wife, and in 2008 he made a privacy claim for damages against Withers. The claim was dismissed by Mr Justice Eady in the High Court.

However, Mr White has pursued his claim for damages for the misuse of confidential or private information and wrongful interference with his property to the Court of Appeal '“ White v Withers & Anor [2009] EWCA Civ 1122 '“ where the appeal judges have determined that his claim should go to full trial, saying: 'It is not conducive to the administration of justice that such claims are simply swept under the carpet' (see solicitorsjournal.com, 28 October 2009).

Such comments, and the decision to allow the claim to proceed, may result in other clients coming forward to lodge similar claims. Indeed, practitioners are concerned that urgent guidelines may be required to enable them to advise their clients fully in relation to documents produced which may be helpful to the preparation of their case.

This seems particularly pertinent in view of the more recent decision in Imerman v Imerman [2010] EWHC 0064, where although Mr Justice Moylan condemned Lisa Tchenguiz and her brother for seizing documents from the computer of her estranged husband, Vivian Imerman, a former owner of Del Monte Foods, for use in her divorce case, in which she is seeking a share of his estimated £300m fortune, he did allow the evidence to be used in the case. The matter is currently pending in the Court of Appeal, and the decision seems to support the view that spouses may take documents which they find 'lying around' if they believe their spouses are concealing financial information.

In the Imerman case, the High Court was informed in February 2009 of the confidential documents found on Mr Imerman's computer in an office shared with his brother in law. Ms Tchenguiz's brother, Robert, ordered his IT staff to hack in to Mr Imerman's computer believing that Mr Imerman would try to hide details about his financial circumstances.

In this particular case, it is believed that the judge allowed the wife's family to keep the documents for use in the proceedings, despite expressing strong disapproval of their actions, because he ordered indemnity costs of over £500,000 against her in order to act as a public deterrent to others considering taking similar action.

It is hoped that the White case will end the confusion over the use of such documents when it is heard later this year.

Invalid marriage

Another case previously reviewed is that of Hudson and Leigh [2009] EWHC 1306 (Fam) originally dealt with by Mr Justice Bodey who heard evidence from the parties and watched a DVD of a 'wedding' ceremony in South Africa to determine whether or not there had been a valid marriage (Solicitors Journal 153/27, 14 July 2009).

Bodey J held that there had been no legal marriage and therefore Ms Hudson would be unable to petition for divorce or file a claim for ancillary relief. An application for permission to appeal against that finding was heard by the Court of Appeal on 9 December (Leigh v Hudson [2009] EWCA Civ 1442). The application was refused, with Thorpe LJ concluding: 'I am in no doubt at all that Bodey J was plainly right to rule as he did for the reasons that he gave, and I would refuse the application.'

Sale of the matrimonial home

Another noteworthy recently reported case is Miller-Smith v Miller-Smith [2009] EWCA Civ 1297. This matter was dealt with in the Court of Appeal by way of reserved judgment on 2 December 2009. The court dismissed the appeal brought by the wife against an order of Mr Recorder Sapsford QC sitting at the Principal Registry of the Family Division on 31 July 2009. That application had been made two months before the scheduled hearing of a defended suit for divorce being brought by the husband against the wife, the application being made under section 14 of the Trust of Land and Appointment of Trustees Act 1996 for the matrimonial home which was owned jointly by the parties to be sold forthwith with vacant possession.

Lord Justice Wilson stated that in principle it is much more desirable that an issue relating to the sale of the matrimonial home should be resolved within an application for ancillary relief if such an application/order would be likely to be made within a time frame tolerable in all the circumstances. In such cases, the court should ask itself whether the issue raised by the application could reasonably be left to be resolved within an application for ancillary relief following divorce. However, where, as in this case, an application under the 1996 Act meets the threshold stage of the enquiry, the court is entitled to consider fully the application by reference to the matters mandated for consideration by section 15 of TLATA 1996 with particular reference to the width inherent in the enquiry into the circumstances and purposes for which the home was held.

Bigamous marriage

Hashem v Shyif [2009] EWHC 3462 (Fam) was a decision of Lord Justice Munby sitting in the Family Division on 22 December 2009. The husband had entered into a bigamous marriage which was declared void with the wife seeking ancillary relief. However, the husband refused to engage in the proceedings or to provide any evidence, including refusal to complete a form E.

The husband was in fact a citizen of and resident in Saudi Arabia, but he ran a company, jointly owned by his sons, which owned assets in England. On this basis, the court granted a freezing order and ordered that sums owed to the wife for her successful ancillary relief claim should be settled from sums owed to the husband by the company. However, it was not possible for the court to make any further order as the husband had insufficient control over the running of the company due to the involvement of his sons.

History of gifts

Judgment in SR v CR (Ancillary Relief: Family Trusts) [2008] EWHC 2329 (Fam) was given on 22 December 2009, in a case involving a 20-year marriage during which the parties had three children.

The wife had not worked since the 1990s, and the husband had a history of depression and addiction and had dabbled in various careers and businesses. The husband's father was an extremely wealthy businessman who had historically controlled the wider family's funds and business interests.

Following the parties' separation, the matrimonial home had been sold, and significant legal costs incurred, including costs on the part of trustees of a trust of the wealthy father '“ to which the husband was a beneficiary.

During the marriage the parties spent extravagantly, and had a high standard of living, but, despite this, at the time of the divorce, there was insignificant capital to re-house the parties or to provide for them in the standard to which they were accustomed.

There was also a history of gifts made to the husband by both the father and the trusts, and the court heard evidence about the nature of those gifts '“ the husband and father maintaining that no future gifts would be given to the husband, and that in any event historical gifts had been for business purposes.

However, having reviewed the history of the distributions and gifts and loans provided to the husband by the various trusts, Justice Singer found that they had not been purely for business purposes and that the disclosure made on behalf of the husband in the proceedings had not been full and frank.

The award to the wife was a capital payment of £3m from which to provide herself with a home and periodical payments on a Duxbury basis of £3.25m, while leaving the husband with £1.6m and his interests under the trusts.

Increases in periodical payments

Finally, and following the recent decisions in the cases of Hvorostovsky and MacFarlane, where wives successfully sought increases in their periodical payments based on increases in their respective former husbands income, Baroness Deech's comments about equality and wives' dependent interests on husbands should be noted with interest. Her views on the need for reform of the law on maintenance do not appear to have changed in the last 30 years, and she questions how wives' dependency can be squared with issues of equality of opportunity and pay for women with the courts seemingly looking to equalise contribution within marriage rather than equalising the obligation to go out and earn at the end of a marriage.