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Examiners’ reports 2017

Examiners’ reports 2017 LA2019 Family law – Zone A Introduction Overall, as in past years, there were some very good answers in this exam. Strong answers were able to demonstrate not only knowledge of the law but also to apply it to the specific question. For essay questions, this means identifying the issue the question is raising and addressing it directly. For example, for Q4 while many candidates discussed the ground for divorce and the ease or difficulty of establishing the facts to prove it, they stopped short of addressing the evaluative part of the question about the apparent ‘ease’ of divorce destabilising the institution of marriage. Instead they answered this question by describing the law and then stating whether divorce was easy to obtain or not. It is important to remember that essay questions are directed toward a particular problem or controversy and only rarely require candidates to describe the general state of the law. While it is important to be able to demonstrate knowledge of the law, we are also interested in your critical assessment of it and your ability to spot the issue raised. Essay questions usually raise or identify controversial issues, which in family law sometimes address social problems or concerns and they allow you to demonstrate your understanding of the controversy. For problem questions, while most candidates picked up on the issues to be addressed, many answers lacked detail of analysis. Here is where you have the chance to demonstrate your skills of legal analysis and good answers apply the law to the facts of the case, identifying where there might be uncertainties. Sometimes candidates simply mentioned relevant cases without analysing why they might be precedents for the particular sets of facts in the question. Remember, problem questions usually do not have clear answers; that is why they appear on exams! For both essays and problem questions, therefore, you must use relevant authority to support your arguments; in a common law system there will be cases or legislation on most issues raised in exams and knowledge of this authority is important. But this knowledge must be applied to the issues in essay questions and to the facts in problem questions. We are looking for your skills of legal reasoning as much as for your legal knowledge.

Comments on specific questions Question 1 Jared, aged 50, an author of best-selling crime novels, and Karla, aged 45, a former editor at his publishing house, married in 2000. They have one child, Liam, aged 19, who is beginning his first year at university. Karla gave up her editorial work when Liam was born to care for him and has only recently

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begun to look for work again. She is having difficulty finding permanent work, as she has been out of the publishing business for so long, but is managing to find part-time temporary work from time to time. She earns about £800 per month from this work, far less than the £40,000 per year she was earning before Liam’s birth. Jared and Karla now wish to divorce, but they have been unable to agree how to divide their property. Jared has royalty income from his novels of approximately £1,000,000 per year, about half of which comes from novels he published before he married Karla. He has also just signed a contract selling the film rights to his next novel, which he expects to publish in about a year. He has refused to tell Karla the terms of this contract, as he says that, since they will be divorced by then, it is nothing to do with her. Karla has a small pension from her previous employment. Before they married they entered into a contract in which Karla agreed she would not have any claim on Jared’s royalty income from his novels, but that because she agreed to leave her job to look after Liam, who was two-yearsold at the time of their marriage, Jared would always provide for her and Liam. Jared’s position now is that the agreement should be enforced such that, as long as Liam is at university, he would provide an allowance for him but that because Karla is now able to earn enough to live on, she does not need support from him. He is, however, prepared to allow Karla to remain in the marital home, which he purchased in 1995, and is worth £4,000,000, until she remarries or Liam finishes university, whichever comes first, at which time he will give her a one-off payment of £400,000 to find herself a new home. Karla tells you that she only signed the agreement back in 2000 because she had read a newspaper article saying prenuptial agreements were not binding. She also thought that, if she did not sign it, Jared would not marry her and she thought marriage would offer more security for Liam. She signed the agreement without any legal advice. Advise Karla about what, if any, financial relief she may obtain from a court. The divorce itself is not in question. General remarks This question addresses material from Chapter 6 of the module guide. It asks you to assess what a court might order by way of financial relief after a lengthy marriage and when there is a prenuptial agreement. Assessing the weight a court would place on the agreement would be the most straightforward place to begin, since the agreement, if it is given effect in whole or in part, will affect any orders a court may make. As mentioned in the module guide, however, problem questions like this on financial relief are sometimes difficult to answer. It is not always clear whether one should proceed through the s.25 factors first before then applying the fairness analysis/criteria from White, Miller/McFarlane and Charman, or whether that overall discretionary judgment about fairness comes first, with the s.25 factors then looked at. For this question and on most exam questions about ‘big money’ either approach is fine and it might be of some comfort to know that the courts are not in agreement about the best way to proceed either. In big money cases like this, however, it is important that you first identify the assets available to go into the ‘pot’ before discussing both the three strands of fairness in the context of the facts and also those s.25 factors that may influence the overall determination of fairness. So, dealing first with the prenup. Is it valid on contract law principles? Probably. Is it unfair; will it be given effect? Radmacher is the leading case, which sets out when a prenup may be considered to be unfair and therefore not be given effect. The

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Examiners’ reports 2017

principles that emerged from it were respect for autonomy, no need for legal advice, although each party should have all material information and intend the agreement to be binding are relevant in our facts. The vitiating elements of contract law apply but also undue pressure or unconscionable conduct falling short of duress might be enough to reduce or eliminate the weight of the agreement. This factor may be relevant to our facts as well. Agreements would be given decisive weight unless they are unfair. So the lack of legal advice may not be sufficient to render this agreement unfair but a good answer should consider that the pressure K felt to sign may be sufficient especially together with the fact that she did not believe she would be bound by the agreement. See comments from the UKSC on these issues and subsequent cases in which parties may not contract out of need but may contract out of sharing non-family assets. Answers should then discuss how the family wealth may be distributed if the agreement is not given full effect. They should first identify the assets and discuss whether they will be treated as marital or non-marital assets. Here, pre-relationship royalties? McCartney, S v S, for example, would suggest they are non-marital. The home? Probably a marital asset – was used as a family asset. Post-relationship earnings from the film? Perhaps treated differently, SK v WL. Her pension? Any other reason to depart from equality, e.g. ‘special contribution’ such as J’s talent as a novelist? What about ‘clean break’? In all these types of questions, you should ultimately put together an award that you feel is fair and justify it according to case law. Law cases, reports and other references the examiners would expect you to use At least White, Miller, McFarlane, Charman on the three strands of fairness, the relevant s.25 MCA factors; Jones v Jones on how to approach a case where there are non-marital assets that may justify a departure from equality. McCartney, S v S on pre-acquired assets; Mesher and Martin on the home. Common errors 1. Failing to identify the shareable assets, including the pension and/or failing to conclude with a judgement about what type of order may be made. 2. Simply running through each of the s.25 factors. Not all of them were relevant to the facts of the case. Those that were relevant were not always applied to the facts to show how/why they were relevant. 3. Giving a virtual list of authorities without applying them to facts of the case. A good answer to this question would… address the likelihood of the prenup being given effect to (Radmacher); explain that all assets, once they are identified, go into the pot for potential distribution; say that distribution is made on the basis of fairness (White); and discretion; it has three strands (Miller/McFarlane) needs (e.g. K’s low income), compensation (e.g. K giving up her job and taking on homemaking responsibilities) and sharing (equal or departure from equality? If a departure, on what grounds?); perhaps a fourth strand of fairness (autonomy V v V); discuss the relevant s.25 MCA factors; explain the distinction between marital (family?) and non-marital (non-family?) property and the effect of the distinction on how the value of asset may be shared. Refer to Jones v Jones: if all assets are needed to meet needs then the nature or source of them is not relevant, if not, then usually equal division unless a departure from equality is justified usually on the basis of nature or source of asset or special contribution. Pre-acquired, post-divorce acquired, special contribution – all may justify a departure from equality. Poor answers to this question… missed entirely the court’s discretionary role and the three strands of fairness; lacked detail about the nature/source of the assets and why that might affect their

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distribution; described or gave an overview of the law but failed to outline the orders that might be appropriate in this case or explain why. Question 2 The ‘threshold test’ in section 31 of the Children Act 1989 aims to protect the family from unwarranted intrusion while at the same time protecting children from harm. Does the test strike the correct balance in your view? Illustrate your answer with case law. General remarks This question deals with material from Chapter 11 of the module guide. It asks you to evaluate whether the threshold test strikes the right balance between two potentially competing goals: preserving the privacy and integrity of the family and protecting the welfare of children. You should explain first what the test is and when it is used. You may examine each part of it (e.g. the meaning of ‘significant harm’ the meaning of ‘likely to suffer’, the meaning of ‘attributable to the care …’), assessing how well each balances family integrity and child protection, or you may look at the test as a whole. Either way, leading cases on interpreting the test must be mentioned, such as Humberside CC v B and Re B UKSC, Northamptonshire CC v S, Re B standard of proof, Re L threshold criteria, Re J UKSC and Lancashire CC v B. The question also calls for an assessment of whether in your view the test permits intervention in the family too easily, or alternatively, is too difficult and therefore leaves children at risk. Many candidates discussed the test itself but did not then go on to the evaluative part of the question. Law cases, reports and other references the examiners would expect you to use At least s.31 Children Act; Humberside CC v B and Re B UKSC, Northamptonshire CC v S, Re B standard of proof, Re L threshold criteria, Re J UKSC and Lancashire CC v B; perhaps Article 8 European Convention on Human Rights and Fundamental Freedoms. Common errors A common error was to review the case law with little assessment of the balance it strikes. A good answer to this question would… mention all the above cases and make some reference to the welfare stage and HRA obligations as an additional part of the balancing exercise; mention Re G (2013) and Re B UKSC; would come to a conclusion on the correctness of the balance, particularly when it comes to likelihood of harm – how can the court predict the future so as to protect both the family and the child?. Poor answers to this question… were merely descriptive and/or did not seem to understand the circumstances in which the threshold test was used. Student extract S 31 CA 1989: Baroness Hale describes it in Re B 2008 as a binary system, this means that the subsection a and b must be used in correlation with each other, these are aimed at protecting both child (which the welfare criteria must be used in accordance) as well as the threshold. The words significant harm is used quite often in the relevant section therefore light must be placed on Booth, J’s explanation in Humberside CC v B on what is significant harm: he explains this as noteworthy, important and considerable. One would now look at the past case law to enable a critical understanding as to whether there is a balance.

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Examiners’ reports 2017

Care orders and supervision orders are quite drastic in nature as care orders relinquishing parental responsibility and supervision orders enable the local authority to be in the home.[After some discussion of the two orders.] …The benefit of the law allows for fairness and respect for family life … notwithstanding respect for family life although parents are also allowed to have their own parenting styles, the scope of section 31 allows for consideration of accidentals and non-accidentals which would take into account carelessness, recklessness, negligence, that would be outrightly wrongful and does not amount to corporal punishment but abuse. [The answer then goes on to discuss the unknown perpetrators situation, mentioning the Re B, Lancashire and Re S-B cases.] Comments on extract This answer, while not very well written, does attempt to assess the balance the threshold test aims to achieve. It mentions the right to family life and the difficulties with the unknown perpetrator cases. It does not, however, deal with the difficulties in establishing ‘likelihood’ of harm, and the lack of precision of language (‘accidentals and non-accidentals’?) does not help. There is some knowledge of how the test has been applied in the cases, however, and so it achieved a borderline 2:1. Question 3 Alva and Ben lived together in Ben’s flat for eight years. They have one daughter, Crystal, who is seven. For most of their relationship Alva was a full time homemaker and primary carer for Crystal, but two months ago she started a new job working three evenings per week in a local café. On these evenings Ben looked after Crystal. Recently, Ben has become suspicious of Alva’s work pattern and has accused her of having an affair. Each evening she was working, he would wait up for her, demanding to know who she was with and how she got home. Ben’s behaviour became more and more volatile until the arguments intensified two weeks ago when he woke Crystal and demanded that she tell him ‘who mummy was seeing’. Crystal was frightened and Alva called the police, worried for both her and Crystal’s safety. Ben agreed to leave the flat when the police arrived and he has been staying at his brother’s since then. Alva has had no contact with him, hoping the time away would calm him so that they could talk, but Crystal came home from school yesterday crying and said that Ben was waiting for her outside the school and again asked her ‘who mummy was with’. He also told her that he would be home soon and that ‘mummy’s boyfriend would be sorry’. Alva is now very worried for her and Crystal’s safety. She wants to stay in the flat and asks you for advice. Would your advice be different if Alva and Ben were married? General remarks This question asks about protection from domestic violence; Chapter 5 of the module guide. It raises issues about what, if any, orders may be available when there has not been physical violence but when one is afraid for one’s self and a child. Most students got this and discussed occupation orders and non-molestation orders. Many also discussed orders under the PHA, however, which might be more difficult to obtain. Has there been ‘harassment’ here? These questions about occupation orders call for students to apply the correct section of the FLA 1996 and work out how the balance of harm test may or may not apply. Marks are given for this reasoning and so it is not enough simply to say that she may obtain an order. You must tell us how and why.

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Your approach to the question might be as follows: if A wants to stay in the flat she must apply for an occupation order. She is not married to B and so must apply under s.36. The court will first consider a declaratory order, looking at the factors in s.36(6). It will then ask the balance of harm questions in s.33(7) regarding a mandatory order and this order is always discretionary. Refer to the draconian nature of the order and also to the type of order she could get. No violence yet, will the court make the order? She wants him prohibited from entering and probably also from a defined area around the flat. Power of arrest? Order for only six months, with one possible extension. Perhaps also s.42, associated persons and nonmolestation of her and C. If they were married, she would apply under s.33 as an entitled person with home rights. The balance of harm test; and difference in duration of order. Law cases, reports and other references the examiners would expect you to use Family Law Act 1996, s.36 (non-entitled cohabitant); s.33(7) balance of harm questions; s.33 (entitled spouse); s.33(7) balance of harm test, s.33(6) discretion; s.42 non-molestation order. At least B v B; Dolan v Corby; Grubb v Grubb and Re L (2012). Common errors Common errors were failing to discuss in sufficient detail how the courts assess an application for an occupation order and simply saying ‘she can get one’; spending too much time on the PHA 1997 when it was clear her primary objective was to remain in the home. A good answer to this question would… distinguish between the balance of harm questions (for s.36 applications) and the balance of harm test (for s.33 applications); analyse the issue of whether physical violence is necessary for an occupation order and refer to the cases about it being a draconian order and where the order was made without physical violence being established; discuss how any orders obtained might be enforced. Poor answers to this question… discussed all possible remedies for domestic violence, including criminal proceedings, PHA applications and FLA 1996 applications. They thus failed to deal with the primary issues being raised in the question. Question 4 ‘Divorce has become too easy and risks destabilising the institution of marriage.’ Discuss. General remarks This question drawing on material from Chapter 4 of the module guide asks about the social as well as the legal institutions of marriage and divorce. So you would discuss both the legal process of obtaining a divorce and the substantive law, addressing in some way: is irretrievable breakdown too easy to establish? Does the simple procedure trivialise the seriousness of marriage and divorce? You might then query the state’s interest in the institution of marriage and thus why ‘destabilising’ it should or should not be an issue. Law cases, reports and other references the examiners would expect you to use Matrimonial Causes Act 1973 on divorce and at least one or two of the many cases on each of the five facts. Although the Owens case came out before the exam, students were not expected to refer to it. Some reference to earlier Law Commission reports about divorce law reform woul...