Civil partnership, prenuptial agreements and costs: The last week in family law

The Government has confirmed that it will introduce
legislation in the next Parliamentary Session to extend civil partnerships to
opposite-sex couples. The confirmation comes in a report by the Ministry of
Justice to the Joint Committee on Human Rights on the Government’s response to
Human Rights judgments. The report refers to the Supreme Court decision in June
that held that the present law, which precludes opposite-sex couples from
entering into a civil partnership, was incompatible with the European
Convention on Human Rights. On the 2nd of October the Prime Minister
announced that the Government will extend civil partnerships to opposite-sex
couples. The report says: “We intend to consult to enable us to introduce
legislation in the next Parliamentary Session to bring about the necessary
changes.”

The Court of Appeal has ruled that prenuptial agreements
signed by a former racing driver and his wife are unfair. Kenny Brack, who is
now a test driver for McLaren, and his wife Anita signed the agreements when
they were married in 2000. Under the terms of the agreements Mrs Brack was only
to receive £500,000 when she separated from Mr Brack, despite Mr Brack’s wealth
now being estimated at some £11.4 million. In 2016 Mrs Brack went to the High
Court seeking a larger settlement, but Mr Justice Francis upheld the
agreements. Mrs Brack appealed to the Court of Appeal, which found that the
agreements were unfair. The Court of Appeal therefore allowed the appeal, and ordered
that the case be reheard.

The President of the Family Division Sir Andrew McFarlane
has said that it is no longer appropriate to call the unprecedented number of
children cases in the family justice system a ‘crisis’. Speaking to the
Association of Lawyers for Children Conference he said: “Whilst the use of the
word ‘crisis’ was fully justified in drawing attention to the developing
situation in 2016, at a time when we did not understand what was occurring or
why, that word is no longer apt as there is now a fairly clear and developing
understanding of these matters and a set of strategies that are being developed
to address the pressures in the system.” In future, he said, he intended “to
use the phrase ‘workload challenge’ to refer to the acute difficulties that we
are all currently facing.”

An estimated 7.9% of women (1.3 million) and 4.2% of men
(695,000) experienced domestic abuse in the last year, according to the most
recent Crime Survey for England and Wales, for the year ending March 2018. There
has been no significant change in the prevalence of domestic abuse experienced
in the last year, compared with year ending March 2017. Women were four times
as likely as men to have experienced sexual assault by a partner (including
attempts) in the last year. Female victims of partner abuse were more likely
than male victims to experience non-physical abuse (emotional, financial) and
sexual assault by rape or penetration (including attempts); male victims of
partner abuse reported a higher level of force than female victims. There was a
significant decrease in the proportion of female victims of partner abuse
reporting to the police in year ending March 2018 compared with the year ending
March 2015, the last time this was asked about in the survey.

 And finally, Mr
Justice Francis has warned that litigation is not a “blank cheque”, and that divorcing
people cannot behave on the basis that they are bound to be reimbursed for
their costs. The warning came in a judgment in relation to a wife’s application
for financial provision from her husband. The wife had sought £7.7 million out
of the assets of £12.3 million, but Mr Justice Francis awarded her just £4.05
million, including a ‘Duxbury fund’ of £2 million for her to invest to provide
her with an income for life. The wife also sought £915,000 in legal costs and
to repay a litigation loan. Considering this, Mr Justice Francis said: “…people
cannot litigate on the basis that they are bound to be reimbursed for their
costs.  The wife has chosen to instruct
one of the highest regarded and consequently one of the most expensive firms of
solicitors in the country.  Whilst I have
no doubt that the representation has, at all times, been of the highest
quality, no one enters litigation simply expecting a blank cheque.” He decided
to add an extra £400,000 to the wife’s lump sum, meaning that her Duxbury fund
would be reduced by some £500,000 to cover the rest of her costs, and that the
fund would only generate £75,000 per annum, rather than £90,000.