Legal Q&A

Under general principles of trust law, a beneficiary’s or settlor’s spouse may serve as a trustee of a settlement without any prohibition. More broadly, there are few limits on eligibility for appointment as trustee; any person with capacity in law to hold the legal title to the trust property can be lawfully appointed as a trustee of that property......

The court holds comprehensive jurisdiction to sanction or decline a financial remedy consent order embodying the parties’ bargain (see section 33A of the Matrimonial Causes Act 1973 ( MCA 1973) and the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 9.26). Yet the court is neither ‘a rubber stamp’ nor a ‘bloodhound’ or ‘forensic ferret’ (see Pounds v Pounds and L v L). Its jurisdiction cannot be excluded. The court undertakes an autonomous and independent evaluation to enable it to discharge and fulfil its statutory duties by reference to the relevant factors set out in the MCA 1973, s 25......

When a property is held by a husband and wife as joint tenants, each is regarded as owning the entirety of the property, and if one dies the surviving joint tenant continues to hold ownership of the whole property. Under this form of ownership, it is simply not possible for either the husband or the wife to leave a ‘share’ in the property to any third party......

Broadly, a capitalised maintenance order is intended to achieve a clean break, bringing to an end each party’s financial responsibilities owed to the other, both during life and on death, pursuant to the relevant statutory provisions of section 25A of the Matrimonial Causes Act 1973 ( MCA 1973) See the Practice Notes: Capitalised maintenance— Duxbury calculations, and Financial clean break orders in family proceedings......

Much will turn on the exact provisions settled between the parties; for example, whether the essential component of child maintenance was set as a fixed sum with no top‑up payable at the time of the initial order because, at that stage, the payer’s earnings did not cross the relevant threshold. It will also matter whether, when that basic maintenance figure was determined, a 50/50 shared care regime was already in place and operating from the outset. The calculation used in the order appears to mirror the approach endorsed by Mostyn J in CB v KB, particularly at paragraph [49], where he indicated that in any case in which the non‑resident parent’s gross annual income does not exceed £650,000, the starting benchmark should be the output of the formula, disregarding the cap on gross annual income set at £156,000......

Parental responsibility Parental responsibility, as defined in section 3(1) of the Children Act 1989 ( Ch A 1989) itself, means all the rights, duties, powers, responsibilities and authority which, by law, a parent has regarding the child and his property. Anyone with parental responsibility is, as a matter of right, entitled to copies of both medical records and school reports, and the surgery or school should provide these......

When a baby is born, the birth must be registered, and the surname entered at that time is intended to be the name by which the child is known. If a parent later wishes to change the child’s surname, they should first consult any other person who holds parental responsibility before any step is taken. This applies irrespective of the existence of a child arrangements order, and regardless of whether that person has contact with the child ( Re PC ( Change of Surname)). Where there is disagreement, the matter must be placed before the court for a determination. A contested change of surname must not be made unilaterally ( Dawson v Wearmouth). Altering a name is a significant matter and should not be approached lightly. In deciding whether to grant leave, the court is guided by the welfare principle in section 1(1) of the...

It is not clear whether the donor holds a lasting power of attorney ( LPA) for property and affairs ( P& A), for health and welfare ( H& W), or both. As attorneys have determined that the donor’s home should be sold (necessitating a P& A LPA) and that the donor should move into a care home (necessitating a H& W LPA), we proceed on the basis that both LPAs exist and have been registered. We also proceed on the basis that there is more than one attorney. Where authority to act is several rather than joint, the lending attorney may opt out of any decision in which they have a conflict of interests. It is further assumed that: the donor had adequate capacity to enter into the loan the LPAs do not include specific instructions or...

In England and Wales, the courts possess jurisdiction over divorce and judicial separation proceedings pursuant to Council Regulation EC 2201/2003 (often referred to as Brussels II bis)......

The young person is now past 18, has finished secondary schooling and is moving on to higher education. The prior maintenance arrangement has now ceased, and the child intends to seek financial provision under Schedule 1 of the Children Act 1989 ( Ch A 1989) by making their application. Under Ch A 1989, Sch 1, a parent, guardian, or special guardian of a child, or any person in whose favour a residence order is in force with respect of a child, may apply for a range of orders for the benefit of a child as provided under Sch 1......

The best way to approach this issue The most effective starting point is to identify what the court will need to be persuaded of, namely: that the care order can, and ought to, be brought to an end; and that a special guardianship order may properly be substituted in its place. Whether the care order can and should be discharged turns on how far the difficulty that arose four years ago still persists. If, in truth, the threshold criteria under section 31(2) of the Children Act 1989 are no longer met, the care order can fall away. See Practice Notes: Public children—threshold criteria and Termination, discharge and variation of care and supervision orders......

Personal service of a divorce petition It is inferred that this Q& A concerns personal service of a divorce petition, given the mention of the ‘petitioner’. As a starting point, a divorce petition is commonly served on the respondent by first class post. That said, Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, 6.4 permits service of a divorce petition by other means, namely: personal service pursuant to FPR 2010, SI 2010/2955, 6.7 alternative service providing delivery on the next business day under FPR 2010, PD 6A where FPR 2010, SI 2010/2955, 6.11 applies (the respondent has a solicitor acting and the applicant has written notice that the solicitor is instructed to accept service of the application), service via document exchange ( DX) See Practice Note: Service of applications for matrimonial and civil partnership orders within the...

Where no particular limitation exists within the deputyship order concerning the deputy’s sale or acquisition of land, the stated general authority will typically and ordinarily encompass fully the authority to purchase and dispose of property for the benefit of the protected person ( P)......

A request for a financial order included within a divorce or dissolution petition/application counts as an application for financial relief for the purposes of section 28(3) of the Matrimonial Causes Act 1973 ( MCA 1973) or paragraph 48 of Schedule 5, Part 10 to the Civil Partnership Act 2004 ( CPA 2004) (see Jackson v Jackson). Consequently, to safeguard capital claims, it is not essential to have additionally lodged a Form A before remarriage or before starting a further civil partnership, though it remains sensible practice to do so......

Put simply, financial provision orders do not come into force until the decree is made absolute. This is set out expressly for lump sum and periodical payments orders in section 23(5) of the Matrimonial Causes Act 1973 ( MCA 1973). As regards property transfer orders or settlements, the requirement appears in MCA 1973, s 24(3). See Practice Note: Implications of the death of a party......

An in-depth review of welfare benefits lies beyond the remit of Lexis+ Family practical guidance; however, we point you to the government guidance Universal Credit: further information for families, which you may find useful. Universal Credit: an overview: Butterworths Family Law Service [8162] may likewise be of interest. If needed, consider seeking advice from a welfare benefits specialist where necessary and appropriate also......

A request for a legal services order constitutes an interim step, brought under the specified procedure in the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 18......

Form D180 ( PDF Format) can be utilised in relation to the registration of orders under Article 39 of Council Regulation ( EC) No 2201/2003 of 27 November 2003 concerning decisions in matrimonial matters ( Brussels II bis)......

It is commonplace in financial remedy proceedings for a third party to be added to the case, either to advance a claim to a beneficial interest in a property or other asset, or to permit making of an order for sale in relation to that property. In TL v ML, Mostyn J articulated the procedural principles to be applied to such matters......

If a monetary order in family proceedings remains unpaid, the judgment creditor may, in those circumstances, seek a judgment summons by applying to the court for enforcement. The process is regulated by the Family Procedure Rules 2010 ( FPR 2010), SI 2010/2955, Pt 33, and if the court is persuaded that the debtor has defaulted on a debt and has, or has had since the order, the means to discharge the unpaid amount yet has refused or failed to do so, it may order the debtor’s committal to prison. This sanction applies where default relates to the ordered sum and endures despite the debtor’s means......