Hill v Haines, Charman revisited

This afternoon I attended an excellent seminar organised by Kent Resolution and given by the Family Law Team at Hardwicke Building. The theme was 'Recent Developments in Ancillary Relief', but the seminar essentially concentrated on two recent cases.

First up was Richard Buswell, who discussed Hill v Haines, a case I have mentioned here before. Richard began by stating that he does not believe the case has changed the law. Instead, its importance is that it significantly increases awareness of the impact of bankruptcy on ancillary relief applications. To recap, the case decided that divorce financial orders made in contested proceedings can be set aside, so that the trustee can utilise assets that the court ordered to be transferred from the bankrupt spouse to the other spouse, to pay the bankrupt's debts. Richard envisages trustees in bankruptcy mentioning Hill v Haines to family lawyers and expecting them to instantly capitulate, so listed a set of 'tools' that we can use to 'fight back'. He pointed out that the case does not say that orders can be set aside where consideration in money or money's worth has passed between the parties. Accordingly, we should look for examples, such as money already received/spent, or assets 'ring-fenced' and kept by the transferring spouse, such as a business. It could then be recited to the order that, for example, 'the wife has relinquished her claim to the husband's business, worth £x'. Very useful. [Note that Hill v Haines recently went before the Court of Appeal, and we are awaiting the judgement.]

Richard was accompanied by Simon Buckhaven, who gave a fascinating talk about the Charman case, detailing the facts and summarising the pertinent points. Simon considers that Charman has considerably clarified the principles to be applied when deciding an ancillary relief case, following a string of muddled and contradictory decisions. In particular, he says, equality of division is no longer just a 'yardstick' or check, it is a principle of financial law, so that property should be shared equally unless there is good reason to depart from equality. Importantly, Charman applies not only to big money cases but to all cases so, for example, it made clear that where need is greater than what can be achieved by equal sharing, need prevails; where need is met by sharing, sharing prevails. Charman then went on to clarify such issues as special contributions, short marriages and other reasons for departure from equality. As Simon says: "It is a welcome decision", and clearly essential reading for all family lawyers (assuming you've not read it already!).

Comments