Judicial Mistake in DIY Divorce Settlement Rapidly Corrected

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1 Judicial Mistake in DIY Divorce Settlement Rapidly Corrected Mesothelioma Settlements Not Available Capital Over-Simplistic Approach Produces Challenge Pre-Nup Partially Set Aside as Judge Highlights Uncertainty in Law Rights of Way What Does 'Continuous' Mean? Social Housing Tenancy Splits UK Not Always Best Judicial Mistake in DIY Divorce Settlement Rapidly Corrected When a husband and wife split up, they amicably decided that maintenance would be paid by the husband to the wife for five years and agreed between themselves the main details of their other financial arrangements, leaving only some aspects to go before the court. However, when the financial settlement order was handed down by the court, it allowed only that the payments would 'cease on the first of the following events: (i) the death of either party, (ii) the remarriage of the applicant wife and (iii) further order of the court'. The judge involved had simply failed to take into account the couple's agreement. The husband, who had not been legally represented at the hearing, went back to court to have the order restricted such that payments would end in 2019.

2 The Family Court judge immediately agreed that the judge in the District Court had 'failed to take into account the highly relevant factor that an agreement had been reached on the term of the maintenance order and that his resultant analysis of the issue was plainly inadequate'. He also commented that 'it is highly regrettable that people of such modest means should have been caught up in this expensive and flawed process'. It is highly unlikely that this case would have had to go to court a second time had the husband been legally represented at the first hearing, as his solicitor would have pointed out the limitation agreement. To get your divorce settlement right first time, contact Georgia Plummer , via or call into our office on Westgate Launceston. You will find client parking right outside our front door. Mesothelioma Settlements Not Available Capital Opponents of proposals by the Government to require mesothelioma sufferers to pay court fees of up to 10,000 to fund their claims against those responsible for them having contracted the terminal disease have won a victory which will benefit all future claimants. The Pneumoconiosis etc. (Workers' Compensation) Act 1979 provides a lump sum award of up to 15,000 to sufferers of the disease, which is almost always contracted as a result of exposure to asbestos. This is in addition to any sum they might be awarded as a result of court proceedings for negligence against a former employer. Most contact with asbestos occurred in the workplace in the years before strict health and safety laws were brought in to control exposure. However, the scheme that allows someone diagnosed with mesothelioma to bring a claim without having to fund it themselves is only available to those who have 'disposable capital' of less than 16,000. The Government considered that the lump sum should be counted as disposable capital, meaning that the receipt of the award would require most mesothelioma sufferers to fund their own claims at a time when they are in poor health with a short life expectancy. Following a challenge by the Asbestos Victim Support Groups Forum, the Government has agreed that the definition of disposable capital will be amended to exclude a sum received by a mesothelioma sufferer under the Act. Over-Simplistic Approach Produces Challenge Disputes over the valuation of assets in divorce cases are common, particularly when there is a family company involved. In such cases, the judges need to demonstrate financial nous and analytical ability if their decisions are not to be challenged, as happened recently. In the case in point, a couple owned a company, with the husband having a 51 per cent share of the equity. The couple had been married for 13 years and have no children. The company was valued at a little over 200,000 by the judge in the District Court and the husband earned about half that sum annually from it.

3 The wife's income marginally exceeded 1,100 per month. The judge made an order whereby the husband was required to buy out the wife's interest in the company for 99,600 and make monthly payments to her of 2,500. She was also to have the former matrimonial home transferred to her. In addition a pension sharing order was made. The husband disputed the decision on several grounds, not least because the judge had not taken into account either the tax payable on the share transfer or the difficulty in actually making the lump-sum payment to the wife. He had also valued the company on a 'sale' basis, when it was not for sale and the husband's involvement was necessary to keep it profitable. It had also suffered a dip in profits which the judge considered to be transitory without giving any compelling reason for his decision. On appeal to the Family Court, a rehearing was ordered. For advice and assistance in negotiating any financial settlement, please contact Georgia Plummer for advice on , via or call into our office on Westgate Launceston. You will find client parking right outside our front door. Pre-Nup Partially Set Aside as Judge Highlights Uncertainty in Law It is commonly thought that pre-nuptial agreements are legally binding, but the lack of clarity in the applicable law means that they can sometimes be successfully challenged. In a recent case, a judge called for more certainty in the law concerning pre-nuptial agreements after ordering an ex-wife with a fortune valued at 27 million to support her former husband despite his agreement before they married that he would make no claim against her. The wife insisted that she would not have entered into the marriage had the husband not signed the agreement promising not to make a claim on her fortune if their relationship ended in divorce. Prior to the agreement, he had exaggerated his own wealth and earnings in a bid to reassure her that he was not marrying her for her money. During their 11-year marriage, the couple had two children and lived in a 4.5 million home in London. Although the husband was a talented film producer, he had earned relatively little and, due to his wife's inherited wealth, had been able to indulge his artistic whims without having to try too hard to achieve commercial success. In arguing that he was not bound by the agreement, the husband said that he had 'switched off and stopped listening' after a lawyer informed him that it was unlikely to be legally enforceable. However, in finding that the agreement should be given substantial weight, the judge said that the husband could not escape the legal consequences of having signed it.

4 Nevertheless, the judge observed that the husband was now 'in the autumn of his working life' and was entitled to maintain a reasonable lifestyle. After his debts were taken into account, he only had capital of about 300,000. Despite the agreement, the wife was obliged to do more than merely keep him from destitution. Noting that the ex-couple had run up about 1.77 million in legal costs debating the validity of the agreement, the judge directed the wife to provide the husband with a 1.7 million housing fund for life and sufficient capital to give him an income of 50,000 a year, which would be enough to meet his reasonable outgoings. In a plea for the law to be clarified, the judge said, "If ever there was a paradigm example of a case which demonstrates the need for more certainty in the law of financial remedies and nuptial agreements, this is surely it." Rights of Way What Does 'Continuous' Mean? Arguments over rights of access to land are very common, and a recent case shows the importance of the wording under which a right is granted. It involved a piece of land which had been conveyed 'with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the property'. This clause was used by the owners of adjacent land to justify their right of way over that land. Among the more interesting aspects of the Court of Appeal's decision in confirming that right were its conclusions that: a) the right would exist if it had been 'continuous and apparent' on the date of the transfer of the land subsequent use was not relevant; b) access over the land on average once a month (as was the case here) was sufficient to establish that the use was continuous and apparent; and c) having established the right of access by motor vehicles, the right to use for lesser purposes (e.g. on foot or by horse) was also established. If you are considering purchasing a property, enquiries about the rights of access others may have over the land can be a particular issue. This is especially true in the case of rural properties which have been carved out of larger estates of land. For advice on all property matters, please contact Helen Davies on , via or call into our office on Westgate Launceston. You will find client parking right outside our front door. Social Housing Tenancy Splits If joint tenants of social housing fall out to the point where they can no longer live together, deciding which of them has to leave the property can be an agonising choice. That was

5 certainly so in one Court of Appeal case where a disabled man was ordered to quit his flat, leaving it in the sole occupation of his former partner. The man suffered from a serious back condition and could not work. For that reason, he and his partner had been granted the tenancy of a ground floor council flat at a low rent. Their personal relationship ended bitterly and an issue arose as to which of them would have to surrender their tenancy and move out. A judge initially ruled that the man's ex-partner would have to go on the basis that his need for the property was greater than hers. He was ordered to pay her 1,500 in compensation in return for the tenancy being placed in his sole name. However, the door was left open for further applications to the judge. On the woman's application for a review of the decision, the same judge performed a volte face and ruled that the man would have to leave. That was on the basis that the woman needed to live near her workplace and that she could not afford commercial rents in the area. He would struggle to pay the rent on the flat on his own and, if rendered homeless, was likely to be viewed as in priority need of rehousing by the local authority. In dismissing the man's appeal against that decision, the Court noted that it was for the judge to balance the former couple's competing needs and the hardship that they would suffer on being forced to move out. Whatever the outcome of the case, the result would be hard on one of them and there was no error of law in the judge's ruling. For advice on any aspect of social housing law, please contact Helen Davies on , via or call into our office on Westgate Launceston. You will find client parking right outside our front door. UK Not Always Best When a couple break up and the question of which parent should be granted custody of a child is being decided, the court will always do what it thinks is in the best interests of the child. When one of the parents lives abroad, there is no assumption that being raised in the UK necessarily confers any advantage on the child and therefore there is no bias towards ensuring that the child is raised in the UK. In a recent case in which a French mother and a British father both wished to have their child live with them, the court decided that it was in the best interests of the child to live with the mother as it would be relatively easy for the father to visit the child in France but the reverse was not the case.