Friday, 13 January 2017

DOUBLE DOUBLE 'GOYAL' AND TROUBLE


Double, Double ‘Goyal’ and Trouble:
An Easy Way to Sharing Foreign Assets on Divorce?

In the hustle and bustle of the run up to Christmas one can (perhaps) be forgiven for overlooking the latest decision on the ability of the English courts to impose orders over foreign assets. Whilst we were all eating mince pies and watching Home Alone as if it were a new release, the court was seeking to provide clarity on an issue which is becoming so important in an increasingly globalised world.
 
The case of Goyal v Goyal [2016] EWHC 2758 (Fam) provides, at least in the interim, welcome guidance and reinforcement of the principles of sharing foreign assets. It is also a stark reminder of the fatality of failing to follow the correct procedures and how the court will not indulge such shortcomings even where a party does not have the benefit of legal representation (Mrs Goyal did not have a lawyer). 
 
The (Brief) History
Mr and Mrs  Goyal had been married for 8 years. Their litigation history is brutal.  By the time of the decision by the court of appeal (which I go on to discuss below) no fewer than 65 separate orders had been made in the case.
 
At the final hearing in October 2015 HHJ Brasse found that Mr Goyal had an addiction to spread betting. The judge found that conservatively he had lost over £500,000 and that Mr Goyal was:
 
“…digressive, evasive, argumentative and hence, unreliable as a witness…[he] found him to be highly manipulative…”
 
The judge was satisfied that he had lost almost the entirety of the matrimonial assets. There was nothing left save for two pension policies that he had exported to India (during the course of the case). It was worth £87,000. Mrs Goyal discovered documents in India that confirmed Mr Goyal was receiving income from the policies into an Indian bank account.
 
Having decided that the court did not have the power to make an order over a pension based overseas, rather courageously HHJ Brasse made an injunctive order against Mr Goyal which would have the effect of ensuring, at least in principle, that Mrs Goyal (and the parties child) would receive the benefit of the funds.
 
The Court of Appeal found that the injunctive order was not permissible and set it aside. At the same time they inadvertently set aside the entirety of the order. Interestingly Mr Goyal argued during the appeal that the court did have the power to make a pension sharing order. The matter was remitted to Mr Justice Mostyn in the High Court.
 
The Re-Hearing – “Extra – Territoriality”
Mr Justice Mostyn was very critical of the approach taken by the Court of Appeal. Further, Mr Goyal changed tactics. He argued that the court did not have the power to make a pension sharing order in respect of an overseas pension.
 
The judge sourced advice from experts in this field. There was a difference of views on the powers of the court. In simple terms one expert advised that the court could make a pension sharing order providing the pension originated in this jurisdiction. The other expert (Mr Marshall QC) advised that the court was not so confined by the legislation and could make an order regardless of its domestic origins.  The fact that there was such a divergence of opinion reflected how balanced the issue was (and still is).
 
Mr Justice Mostyn, whilst not disagreeing with the literal interpretation applied by the experts, felt that the presumption against the extra-territorial effect of this statute (ie the courts in England and Wales should not make orders that purport to  give an  impression that they are intruding or seeking to bind other countries) was compelling.
 
As such he concluded that:
 
“It is clear to me that this procedure can only work in the context of a domestic pension… For these reasons therefore I am satisfied that pension sharing …is not available in relation to any foreign pension”
 
Where does that leave us now?
Regrettably there has been some poor commentary upon the interpretation of this decision. Whilst it cannot be clearer that the court does not feel the English courts have power to make an order in relation to any foreign pension, the court goes on to detail the ‘other routes to achieve the direct sharing of an overseas pension’.  This involves a combination of undertakings and agreements. This is not an unusual way to approach to matters. There are various ‘strategic’ options available. One party could seek other orders to either procure undertakings and agreements from the other party  or to ensure that fairness is achieved. That will depend on the financial dynamics of any particular case. In the case of Goyal Mr Justice Mostyn felt that fairness could be achieved by ensuring that Mrs Goyal had the benefit of the income from the pension by the making of a periodical payments order in two parts. This would have been bolstered by an injunction to ensure preservation of the asset.
 
The issues in this case appear to have relighted the debate as to whether the court has power to make order in respect of foreign property and overseas trusts. Mr Justice Mostyn has acknowledged that the he “did not address the question of the presumption against extra-territoriality...” in cases about the issue of overseas trusts (watch this space).
 
The ability of the courts to make an order in relation to foreign properties is, for the time being, untouched. Following the decision in Hamlin v Hamlin [1986] 1 FLR 61 It remains well established practice that , “.. a property adjustment order can in principle be made in respect of property sited overseas provided there is clear evidence that such an order would be implemented in the overseas jurisdiction…” (emphasis added)
 
Procedural Issues
It is vital that in each case the procedure is followed by the letter. This involves validly serving the relevant person in accordance with the prescribed family rules. Further, it is imperative that the court is presented with clear evidence as to the enforceability of any order or undertakings in relation to any foreign assets. Mr Justice Mostyn suggests, in relation to a pension, that this should include obtaining clear confirmation that the complex pension sharing annex will be recognised and enforced. In our opinion it is also important, at an early stage, to take advice from a specialist practitioner in the relevant jurisdiction so that any orders can be structured appropriately.  
 
The courts expressed no sympathy to Mrs Goyal for failing to follow the correct procedure or obtaining the relevant evidence (slightly harsh when you think that she was not represented and Mr Goyal was represented by the brilliant James Turner QC!). As a result Mr Justice Mostyn said that this is another reason why her claims for a pension sharing order failed.
 
Digressing slightly from the issues in this case it is worth drawing to your attention the comments of the Court of Appeal in Tinker and another v Elliot [2012] EWCA Civ 1289 :
 
“…there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness……they will only operate close to the margins,” [and that] “an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person,” [the lack of understanding of procedures] “does not entitle him to extra indulgence”.
 
Conclusion
Pension sharing order cannot be made in respect of foreign pensions, however, all is not lost.  The court will always strive to achieve fairness. Adopting a clear, cogent and well considered strategy from the outset on an international level with the necessary expertise is likely to make all the difference between success and failure.
 
I don’t suppose the Court of Appeal will be overly enamoured by this judgment. Something makes us  think that this is just the start of a new era for the treatment of foreign assets by the English courts. 
 
I am a specialist matrimonial lawyer on international law. In 2016 I was awarded the International Academy of Matrimonial Lawyers Young Lawyer of the Year. If you would like an informal discussion about any issues you may have concerning assets or children on divorce please feel free to call me on a free and no obligation basis on 0121 203 5309 or drop me an email at mark.hands@irwinmitchell.com
 
 

Monday, 18 January 2016

MOM OR DAD ON DIVORCE: SHOULD THIS BE A CHOICE?



Last week I represented a Father in an application made by the Mother for permission to permanently remove their children from the country. The final hearing was listed for five days. I would like to use this blog to briefly summarise the law as it now stands in this area and to address the old age question as to whether  a Father get a rougher ride than a Mother in cases concerning children. Does gender bias exist?


The extensive arguments filed on the applicable law reinforce how the higher courts have now (helpfully) unified the approach that should be taken in these cases. We now have clarity.  Without getting too bogged down in the law, the decision in a case known as Re F (a child) (International Relocation Cases) [2015] EWCA Civ 882 essentially says the court should now adopt a ‘holistic view’ of the children’s welfare. As part of the overall welfare consideration the court needs to place appropriate weight on the strength of the relationship between the Father and the children.  Essentially is it in the children’s best interests that they remain in there resident country spending regular periods of time in both parents care or move to another country where the relationship they have with the left behind parent (usually the Father) will be inevitably restricted and, in some cases, diminished completely?   


This, I hear you say, is surely common sense.


Unfortunately this was not always the way the court treated these types of applications. A strict discipline set out in the 2001 case of Payne v Payne made it very easy for departing Mothers to permanently relocate with children. If one were able to establish that a move was motivated by genuine reasons and that, to refuse the remove, would have a detrimental impact on the Mother’s emotional well being (which in turn would be felt by the children) the court was likely to permit a relocation. It, regrettably in my view, led to a plethora of decisions that meant Fathers' being left behind whilst their children moved to a new part of the world. Sure you will have holidays, telephone calls, but, as Father myself, I know this could not replace the day to day life with your children. It does not bear thinking about.


Often the difficulties with these cases lie in the complex factual matrix underpinning the legal arguments. Evidence, evidence, evidence is the message that I always convey.

 
Experts instructed to report on welfare issues and making recommendations to the court often play a significant role in the decision of the case. The judge needs to rely on ‘clear and cogent’ evidence to disagree with the recommendations made by an expert witness. Those who have been involved in court proceedings concerning their children will be all too aware of the role of a Cafcass officer.


In my view Cafcass provide a good service under incredibly difficult circumstances, however, resources are scarce and time is a luxury they do not have. This can lead to a feeling that a child's welfare has not been as thoroughly considered as it ought to have been.  As a solicitor you therefore need to consider alternatives to Cafcass as one, but many, strategic moves that may dictate whether cases of this nature succeed or fail.


One question I am repeatedly asked is whether there exists a gender bias in the decision of the courts. Do Fathers get a rough ride? Are assumptions made in favour of Mothers?

One frustrating component of the law in this area is the speed at which the wheels of justice grind. For example an allegation of domestic abuse by the Mother against the Father, whether true or not, could invoke ‘safeguards’ that mean the children’s relationship with that Father is severely restricted (even supervised) until the veracity of the allegations are tested in open court. It can take many months for a trial of that nature to take place, by which time the Father’s relationship with the children may have been damaged almost irreparably and status quos established. Even if the allegations are proven untrue the relationship could take many months to rebuild to a normal level. If a Mother in those circumstances is prepared to deny the children a relationship with their Father by advancing false allegations, it can frequently come hand in hand with episodes of brainwashing.


The question so often asked is: “if this was the other way around and the Father made an allegations against the Mother would the court deal with this in the same way”.

Fair question. The honest answer is that I am not sure. Going out on a limb I believe some gender bias subconsciously exists, however, this is more of a by-product of Mothers still taking the role of the ‘primary carer’ during the marriage or relationship. After a separation they will normally have immediate ‘possession’ of the child and this makes it easier for them to assert control over the non-resident Father and make allegations that suspend a relationship.


Going full circle to the decisions in Payne v Payne and more recently Re F, nothing could symbolise better the way the courts have evolved over the last ten years to reflect the equal status of both parents. Payne was decided in an era where genuine gender bias existed. The decision in Re F now places a great emphasis on the relationship with, not only a child’s Mother, but also their Father. The decision in Re F should not therefore be viewed in isolation but rather indicative of a wider theme to encourage children to have a proper and full relationship with both parents.


I have been lucky enough to represent both sides of the coin where applications of this nature are concerned. I have acted for successful mothers (in relocating) and successful fathers (in resisting relocation) and I conclude with this: In my view no longer does a gender bias exist. Appropriate weight is now (finally) being attached to the relationship with the Father. Cases of this nature will always involve a significant investment of time and discussion of strategy. I have lost count of the number of hours, days, weeks and months I have spent dealing with the case last week. I am pleased to report it was well worth. The children stayed in the country and an order was made providing for the children to spend equal amounts of time in the care of the parents so that they each have the children 7 nights out of every 14.


Reunite, the leading UK charity specialising in the movement of children across international borders, list me as one of only five lawyers in the West Midlands who specialise in this area. If you have any children related legal issues please do not hesitate to speak to me on a free no obligation basis on 0121 203 5309 or get in touch by email at mark.hands@irwinmitchell.com


Monday, 7 December 2015

MARK HANDS FAMILY LAW BLOG: ALL I WANT FOR CHRISTMAS IS.... A DIVORCE!


At this time of the year we all picture the perfect family. Presents around the tree. Laughter at the dinner table. Smiles. Happiness.  Whilst that is indeed true of many families, this can often conceal the real state of a marriage.

 

The festive period can cause marriages that are already cracking to reach breaking point. One person may have been thinking about taking the leap of divorce for a number of months (or even years) and Christmas has suddenly crept up on them. In a period of reflection and fresh starts the New Year can be the trigger one needs to finally bring a dysfunctional or unhappy marriage to an end.   Alternatively you may have just separated or this could be the first Christmas as a separated parent.

 

Whatever it is, I set out below some practical legal tips to consider in this web of confusion.

 

  1. Before Christmas at least find out ‘where you stand’. Do not wait to obtain legal advice. Remember your attendance with a solicitor, your discussions and their advice is strictly confidential. Whilst it is not a magic solution, obtaining legal advice before you go into Christmas can often alleviate the anxiety. It provides you with options and strategy. That is the key.
     
  2. Preserve assets, If you believe your Husband or Wife will behave or react badly when you announce your decision, be prepared. Ensure you are in a position to preserve assets and can take control of the situation early on.
     
  3. Have a plan in place. Where are you going to live? Do you intend to stay in the home? Do you want your partner to remain – if not, how will you engineer there departure? How will you pay the bills? Are you eligible for financial support?
     
  4. Ensure arrangements for the children are agreed at an early stage. Whether you are a Mother or Father Christmas is a magical time you will want to share with your children. Being a separated parent does not mean you should be deprived of this. Actually the opposite is true. The courts will generally expect Christmas' to be alternated year on year but to ensure the children have the opportunity to share Christmas with both parents. Do not allow the dominant parent  to dictate the arrangements. Your child is not a possession. Both parents are important and equal.
     
  5. Allegations. Do you anticipate allegations being made? If so, what type of allegations and how can you counter these to dilute and minimise the impact.   Can you preserve evidence (lawfully) that will be useful to a divorce case.
     
  6. You are not alone. Around 50% of marriages end in divorce. Advice to those thinking of separation is being given by divorce solicitors up and down the country. There is certainly no shame in being prepared for what the future holds.
     
  7. Finally. The divorce process does not need to be brutal. With adult discussions and the right guidance and support your fresh start could be here quicker than you think.

 

If you need early advice about divorce matters  please do feel free to drop me an email at mark.hands@irwinmitchell.com or pick up the phone for a no obligation initial discussion on 0121 203 5309.