Winter 2018

If you do not have time to read the 20 odd thousand word judgements in this financial remedy case, here is a short appraisal.

Facts

1&1/2 years of cohabitation

4&1/2 years of childless marriage

Parties worked, basic salary similar (£100k), but W received bonuses of £10m during marriage

No deliberate and agreed intention to maintain strict separation of their finances, there were some significant aspects of their financial arrangements which indicated a degree of separation eg the splitting of restaurant and household utility bills between the parties, the husband was not privy to the details of bonuses received by the wife, and the wife's gift of three Aston Martins to the husband.

Total assets were £6.9m, comprising two properties, one (fhm) purchased by W before the relationship.

The figure for matrimonial assets used by trial judge Sir Peter Singer was £5.45m, he arrived at that figure by subtracting from the total assets £1.1m, being the value of one of the parties' homes, which H conceded (wrongly?) should be excluded from the pot of matrimonial assets, and £350,000 to reflect the balance of other pre-acquired assets.

The trial judge found that no sufficient reason had been identified for departing from equality of division and awarded the husband £2.725m. (His comment ‘the parties, in effect, subscribe (to the sharing concept) when they marry unless they choose to opt (or attempt to do so) with a prenup’ was disapproved by the CAp)

The Court of Appeal disagreed with the award and reasoning, McFarlane LJ delivered the main judgement in which the husband's claim was limited to £2m, calculated as follows:

            £1.3m being a 50% share of the aggregate value of the parties' two properties, which were          held in joint names; and

            £700,000 to reflect three factors: (i) the standard of living enjoyed during the marriage; (ii)            the need for a modest capital fund to live in the property the husband was to retain; and (iii)   some share in the assets held by the wife.

McFarlane LJ stated that any interpretation of paragraph [86] of the Court of Appeal judgment in Charman [2007] EWCA Civ 503, (24/05/2007) as expressing a preference for the views of Lord Nicholls in Miller, over the clear majority view, was erroneous (see para [80]). (Charman was not a short marriage nor a dual-career case; the observations at paragraph [86] were obiter).

The majority approach in Miller [2006] UKHL 24, (24/05/2006) was the authoritative guidance in relation to such cases. The ‘inescapable conclusion’ of the majority approach was that in relation to ‘short, childless marriages, where both spouses have largely been in full-time employment and where only some of their finances have been pooled’ fairness may require departure from, rather than a strict application of, the equal sharing principle. This departure may occur via ‘a reduction from a full 50% share or the exclusion of some property from the 50% calculation’.

McFarlane LJ said his court had to follow the majority view in Miller i.e. Baroness Hale’s approach (paragraphs 148-152) supported by Hoffman LJ (para 100). Mance LJ endorsed paras 150 - 153 of Hale LJ’s reasons. (However Lord Hope of Craighead at para 101 diplomatically (but not helpfully) said ‘I have had the privilege of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Baroness Hale of Richmond. I would find it very difficult to say to which of them I would give the award … On all points that are relevant to the disposal of these appeals I am in full agreement with them both’!).

The manner in which the parties arranged their finances was more than sufficient to establish that the wife maintained her capital separately, in a manner compatible with that described by Baroness Hale in Miller.

In Sharp, McFarlane LJ provides a good analysis of the relevant parts of White, Miller and other relevant cases.

Once again the higher courts make observation that where there are appropriate funds, sharing will apply, but give some indication of how the sharing principle can be departed from.

The Upper Tribunal has slammed an Immigration Judge for his handling of immigration cases. This has been described as unprecedented. The Immigration Judge in question is Immigration Judge Majid. The Upper Tribunal was hearing an appeal against 13 of his judgments. The Judgment makes for uncomfortable reading [AA/06906/2014 & Others [2017] UKAITUR].

The Upper Tribunal refers to the fact Immigration Judge Majid refers to no more than the most basic principles of law being referred to in the decisions and even then they seem to be quite wrong. The Upper Tribunal gives examples of the wrong principles used by Immigration Judge Majid.

“In our judgment, these errors, and others to be found in Judge Majid’s decisions, are serious. They give the impression that the judge has very little idea of either his own (limited) powers or the content of the law that is in issue in the appeals before him. The error about the standard of proof in an asylum appeal is the sort of thing that the Upper Tribunal might well think was just an unimportant slip of the pen or ill-advised use of a standard paragraph if it occurred in a decision that was in other respects clearly an application of the appropriate law and standard of proof, but in Judge Majid’s decisions there is so little attention paid to the law or the actual facts of the cases that no such allowance can be made” [para 22].

The Judge was under the impression he was able to allow an appeal on the basis of his discretion or dismiss it on the basis of his impression of the economy is similarly a really serious error. The Upper Tribunal found it particularly troubling that this feature of the Judge’s decisions appears to replace, rather than supplementing, the necessary consideration of the legal issues actually raised by the appeals. In terms of consideration of the legal issues the decisions are almost wholly silent [para 24].

“Specific reference to the facts of cases is sparse; in some of the decisions it is even sparser than specific reference to the law” [para 28].

“Given that Judge Majid makes no detailed reference to facts or to law, it might be expected that his decisions are short, and indeed they are. Despite that, however, they are full of observations many of which are of dubious correctness, some of which are of dubious relevance, and a few of which are wholly inappropriate” [para 37].

“It seems to us that the complaints made about Judge Majid’s decisions are entirely well-founded. Nobody reading them could detect how the judge reached the conclusion he did, acting within the law and applying the relevant substantive law to the facts as found. That is partly because the law and the facts are never the subject of any detailed reference, disputes on the facts are not identified, and there are next to no findings of relevant fact; more seriously is it because the Judge’s statements in his decisions, either by direct assertion or by disquisition on the irrelevant, give real reason to suppose that he is not even trying to act within the law and apply the relevant substantive law to the facts as found” [para 46].

“We regard the body of his work that we have examined in the course of these appeals as wholly failing to meet the standards that are demanded by the office of a judge and expected by the parties. As a result, every one of the decisions under appeal shows error of law, in most cases serious error, in most cases multiple serious errors. Whether the decisions are looked at together or separately, they show that nobody should assume that Judge Majid has an adequate knowledge of the law or of his task as a judge. If his decisions continue to have the features we have identified in the foregoing examination, they are clearly open to criticism.” [para 47]

In each case, Immigration Judge Majid’s decision was set aside or remitted to the First-tier Tribunal. Following publication of the ruling, a judicial spokesman did confirm that there has been a complaint against Immigration Judge Majid. Issues concerning conduct and discipline are in the first instance responsibilities of the Chamber President.

PD12J came into force on 2^nd October 2017 following a review by Mr Justice Cobb. This was as a result of recommendations made by the All Party Parliamentary Group on Domestic Violence in its briefing dated 29 April 2016 and by Women’s Aid Federation of England (WAFE) in its ‘Nineteen Child Homicides’ report published in February 2016.

PD12J sets out what the court “is required to do in any case in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse”.

Numerous amendments have been made. However, some key points to note:

• There is an expanded definition of “domestic abuse” (paragraph 3).
• Mandatory requirements at paragraphs 8,14,15,18, 22 and 29 have been added to be specified in the court’s order. In particular it is highlighted at paragraph 14 that “the court must ascertain at the earliest opportunity, and record on the face of its order, whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child, and specifically whether the child and/or parent would be at risk of harm in the making of any child arrangements order.
• Special measures for victims are considered both before court (paragraph 10) and during evidence (paragraph 28).
• In cases of domestic abuse, the court should take steps to obtain information about facilities available locally (paragraph 32).
• Clear consideration should be given “in every case consider any harm which the child and the parent with whom the child is living has suffered as a consequence of that domestic abuse, and any harm which the child and the parent with whom the child is living is at risk of suffering, if a child arrangements order is made. The court should make an order for contact only if it is satisfied that the physical and emotional safety of the child and the parent with whom the child is living can, as far as possible, be secured before during and after contact, and that the parent with whom the child is living will not be subjected to further domestic abuse by the other parent” (paragraph 36).

In his circular issued on 14^th September 2017, the President of the Family Division stated “Domestic abuse in all its many forms, and whether directed at women, at men, or at children, continues, more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act 1976, to be a scourge on our society. Judges and everyone else in the family system need to be alert to the problems and appropriately focused on the available remedies. PD12J plays a vital part.”