Prenuptial agreements, online divorce and more

family law

A week in family law

My first story is one that actually cropped up last week, but I missed it in my round-up last Friday. It has been reported that Alaska has become the first state in the USA to empower judges to consider the “well-being of the animal” in custody disputes involving non-human family members. The state divorce statute now provides that “in a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide . . .  if an animal is owned, for the ownership or joint ownership of the animal, considering the well-being of the animal”. As an animal lover myself, I can’t say I am against this, although what our judges would think about having to implement such a law may be another question.

In a case that, as Julian Hawkhead has explained here, serves as a warning not to sign a prenuptial agreement unless you are prepared to be bound by it, a wife has failed in her claim that her millionaire husband tricked her into signing an agreement to protect his fortune. The couple, who are both Swedish, entered into the agreement during a romantic weekend at a hotel near Niagara Falls nearly 17 years ago, after which they married and moved to England. The wife argued that the agreement was unfair and that she was entitled to half of an £11 million fortune. However, Mr Justice Francis found that the agreement was binding and he was therefore only able to award the wife half of the net proceeds of sale of the former matrimonial home, amounting to around £650,000. A salutary tale.

The Divorce (Financial Provision) Bill, Baroness Deech’s private members’ Bill that aims to amend the law relating to financial settlements following divorce, has received its second reading in the House of Lords. The Bill intends to make the law clearer, for example by making prenuptial agreements binding, and providing for equal division of ‘post-marital assets’, i.e. those assets acquired after the marriage, save for inheritances and gifts. For details of the ideas behind the Bill, see this post, explaining what Baroness Deech said in the debate. The Bill has been committed to the Committee of the whole house, on a date to be announced.

Mr Justice Jackson has ruled that a transgender woman cannot have direct contact with her five children, because they would be shunned by their ultra-Orthodox Charedi Jewish community if she were allowed to meet them. The case, J v B (Ultra-Orthodox Judaism: Transgender), concerned an application by a father for contact with the children, after the parents’ marriage had ended when the father left home to live as a transgender person. Expressing “real regret” Mr Justice Jackson concluded that the father’s application for direct contact must be refused, due to the likelihood of the children and their mother being marginalised or excluded by the community. He therefore ordered indirect contact only, via letters four times a year. As I explain here, the case demonstrates that it is not the job of the courts to change society.

The race to implement an online divorce scheme is picking up pace, with the announcement that the East Midlands Divorce Centre in Nottingham will be piloting the scheme. Perhaps it won’t be long before we have that much-promised virtual divorce system at last?

The President of the Family Division Sir James Munby has denied that the court is ‘caving in’ by not further punishing a woman who continues to disobey a court order. For a summary of the background to this case, see this post, but briefly it concerns the issue of what is best for a patient lacking capacity to make decisions on his behalf. As the President said, the point is a troubling one, but on the other hand it is not clear what is to be gained by punishing the woman further, particularly as the cost of court proceedings are being borne by the patient.

And finally, the big news story of the week was the one about the Nigerian wife who wants to divorce her ‘lying’ husband. I suspect this could be the first time in history that someone has complained about their spouse lying to them. Truly a ground-breaking case!

Have a good weekend.

Photo by Dafne Cholet via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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