LEGAL UPDATE

Family law

By David Burrows, David Burrows, Bristol

Equality and a clawback

Parra v Parra [2002] EWCA Civ 1886; [2003] 1 FCR 97, CA

In Parra v Parra, Mr Justice Charles at first instance had given the wife 54.3% of the families' assets, had ordered the husband to pay the children's school fees, and had given the wife a charge over land retained by the husband which would kick in if the land were ever developed.

The Court of Appeal was asked: were the first two orders fair to him, and was the last consistent with the court's duty to consider a clean break under section 25A(1) of the Matrimonial Causes Act 1973?

On the facts, Lord Justice Thorpe saw no reason why the wife should have more than half the parties' capital.

He said: 'Equal division of assets should ordinarily be matched by equal division of obligation' (the nearest a reported decision has come to applying the post-White climate to periodical payments) - so she should pay half the school fees.

The clawback technically offended against the clean break, but here it was justified - if limited in time.

Amendments to Family Proceedings Rules 1991

The Family Proceedings (Amendment) Rules 2003 came into operation on 24 February.

They redefine the judgment summons procedure, delete the redundant rule 2.69C (judgment more advantageous than offers made by both parties), and, in particular, introduce the following:

l Dissolution of certain religious marriages - section 10A of the Matrimonial Causes Act 1973 (now in operation) provides that where a couple were married in accordance with 'the usages of the Jews' or other religious usages which prescribe final dissolution 'in accordance with those usages', then grant of a decree absolute can be stayed until the court is satisfied by declaration of both parties that the marriage is also dissolved under 'those [Jewish or other] usages'.

For example, a Jewish husband may at present be able to obtain a decree absolute but leave his former wife undivorced according to Jewish law.

Now she can delay the decree absolute until the Jewish get needed for a religious divorce is obtained.

The new rules 2.45A and 2.45B provide the regulatory framework under section 10A for an application, supported by an affidavit (rule 2.45A) and a declaration by the parties (rule 2.45B).

l Ancillary relief.

In relation to appeals from district judge to judge - the old rule 8.1(3) represented a significant departure from the general rule (see G v G (Minors: Custody Appeal) [1985] FLR 894, HL) on appeals from a discretionary jurisdiction, the appellate court must find the judge below 'plainly wrong'.

Lord Justice Thorpe overlooked rule 8.1(3) in Cordle v Cordle [2002] 1 FLR 207, CA.

The new rule changes the law to bring it into line with what Lord Justice Thorpe thought it should be.

The rule is written in code, which interpreted reads as follows:

l On hearing the appeal, a judge is 'limited to a review of the decision' below unless he considers 'it would be in the interests of justice to hold a rehearing'.

Thus there is either a review as in the Court of Appeal (as judges have been doing since the 1991 rules came in and after Marsh v Marsh [1993] 1 FLR 467, CA); or a rehearing - oral with evidence?

l Oral, or fresh evidence may be admitted if 'in the interests of justice to do so' (adopting perhaps the long-established Ladd v Marshall [1954] 1 WLR 1489; (1954) FLR Rep 422 test; and see Marsh (above)).

The rule (unlike rule 52.11 of the Civil Procedure Rules 1998, on which it is partly modelled) says nothing of the 'plainly wrong' criterion, so central to Cordle.

Perhaps the rule-maker envisaged that the G v G test would catch these appeals.