Financial Remedies
| Author | Gillian Geddes/Richard Budworth |
| Pages | 59-91 |
As background to this topic, it is worth bearing in mind the recent work and recommendations of the Financial Remedies Working Group (the group).
2.1 THE MONEY ARRANGEMENTS PROGRAMME (MAP)
The group was set up in June 2014 to look into ‘... ways of further improving good practice in financial remedy cases ... confined to matters of practice and procedure’.
The aim was to simplify and streamline the procedure for financial remedy proceedings. The outcome was MAP, which was published in early 2014. It is divided into four sections: Procedure; Litigants in person; Standard forms; and Family arbitration.
2.1.1 Procedure
A single procedure for all applications was recommended. Every application should also be deemed to include all applications that a party might have made in relation to any financial issues irrespective of whether they have been made. Financial applications should be separated from divorce/dissolution proceedings.
The first appointment should be used to fix the FDR as soon as possible.
2.1.2 Litigants in person
The group recommended the guide entitled ‘Apply for a financial order without the help of a lawyer’.
60 The Single Family Court: A Practitioner’s Handbook
Other recommended websites include ‘Money and property when a relationship ends’, which has easy-to-use links to the relevant forms,
There was approval of the assistance given to litigants-in-person by McKenzie friends, particularly with organising documents and taking notes in court.
2.1.3 Standard forms
The group recommended the adoption of standard form orders for use in financial remedy cases.
2.1.4 Family arbitration
The group supported arbitration and the swift endorsement of arbitration awards by the Family Court of the Family Division.
2.1.5 Central Family Court pilot scheme
A pilot accelerated First Appointment procedure is running at the Central Family Court. The view of the group is that the current procedure of Form Es, first directions appointment, FDR and final hearings is working well in most cases and will continue. The group does, however, have some recommendations, which include:
ƒ the use of one unified procedure for all financial applications;
ƒ a review of the use of magistrates’ courts to deal with financial proceedings;
ƒ a simplification of financial remedy forms;
ƒ the FDR to take place on the first occasion that the parties attend at court;
ƒ guidance for litigants in person to be issued in addition to the better use of the tools already available.
The Online Resource Centre contains draft court orders.
2.2 NUPTIAL AGREEMENTS
Agreements are one of the ‘circumstances’ that the court under Matrimonial Causes Act 1973 (MCA 1973), section 25 must take into account. They fall into three categories:
ƒ pre-nuptial;
ƒ post-nuptial; and
ƒ agreements to settle litigation.
2.2.1 Pre- and post-nuptial agreements
In Radmacher (formerly Granatino) v Granatino,
The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement. (at [75])
What then are the factors which might result in the court ruling that the agreement was not entered into freely? The court will take into account the circumstances of the parties at the time of the agreement, their age and maturity, whether either or both had been married or been in long-term relationships before and whether the marriage would have gone ahead without an agreement or without the terms which had been agreed. Against this background, the Supreme Court analysed the following factors:
ƒ Material lack of disclosure or information and lack of sound legal advice.
ƒ There must have been a genuine intention that the agreement should be effective. The parties need to demonstrate a commonality of intention with regard to the purpose of their agreement. Where there is an agreement to adopt a specific marital property regime, the parties must also demonstrate an intention that the agreement be binding and determinative upon divorce.
ƒ Duress, misrepresentation, illegality or fraud.
ƒ Unconscionable conduct such as undue pressure.
ƒ Exploitation of a dominant position to secure an advantage.
2 FLR 251 at [58].
62 The Single Family Court: A Practitioner’s Handbook
In what circumstances might the court rule that it would not be fair to hold the parties to the agreement? The following circumstances were considered:
ƒ Children of the family: a nuptial agreement must not prejudice the reasonable requirements of the children of the family.
ƒ Where non-matrimonial property is owned by one or both parties at the date of the marriage or at a later date: there is nothing inherently unfair about making arrangements for this in the event of the marriage dissolving.
ƒ Future circumstances: events, unknown or unforeseen at the time of contingency agreements, can lead to unfairness. The parties’ circumstances can change in ways, or to an extent, which could not have been envisaged. If such a change resulted in one party experiencing real need while the other enjoyed excess, it is likely that the agreement would be deemed unfair. A husband, after signing a pre-nuptial agreement that he would make no claim, either during or after marriage, on the wife’s separate property or gifts made to her by her wealthy family, was left without a home, income, capital and borrowing capacity; furthermore, he had considerable debts. In these circumstances, he was deemed to be in real need.
2.2.2 Radmacher (formerly Granatino) v Granatino in practice
A marriage settlement was not, at first instance, given the weight it should have been, when an award had been made in lieu. The agreement provided a compelling reason for departing from an equal division of assets and was upheld.
On the other hand, where legal advice and full disclosure had been absent, a party could probably not be said to have freely entered into a marital agreement with full appreciation and acceptance of its implications.
Where the wife had signed a post-nuptial agreement, in circumstances where she had been repeatedly and clearly advised as to the likely consequences of such an agreement, she failed in her attempt to vitiate the agreement on the grounds of duress.
A pre-nuptial agreement should be applied in the context of an application for an interim remedy, namely, maintenance pending suit. The court should seek to apply
45 (Fam).
the terms of such an...
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