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Examples of completed verified answers The United Kingdom

Example 1 

Question‍

What factors are considered in financial remedy divorce proceedings?

Verified Answer

Factors in Financial Remedy Divorce Proceedings

Financial remedy divorce proceedings are governed by the Matrimonial Causes Act 1973 (MCA 1973), specifically s.25. This section imposes a statutory duty to consider “all the circumstances of the case”, with first consideration to the welfare of any child under 18. Children’s needs (housing, education, maintenance) are prioritised. Section 25(2) enumerates specific factors the court “shall in particular have regard to”:

Specific Statutory Factors (MCA 1973, s.25(2))

  1. Income, Earning Capacity, Property, and Financial Resources: Encompasses present and future financial assets, including pensions and anticipated benefits.
  2. Financial Needs, Obligations, and Responsibilities: Covers essential living costs like housing, food, school fees, and support for other dependants.
  3. Standard of Living: The lifestyle enjoyed during the marriage informs future provision.
  4. Age and Duration of Marriage: Influence outcomes, with shorter marriages often leading to different divisions.
  5. Physical or Mental Disability: Considered as it can increase needs or reduce earning capacity.
  6. Contributions to the Family: Both financial (e.g., earnings, business skills) and non-financial (e.g., homemaking, child-care) contributions are valued equally.
  7. Conduct of the Parties: Rarely decisive unless egregious (e.g., deliberate asset dissipation) or inequitable to disregard.
  8. Future Benefit or Loss: Considers benefits, like pensions, lost due to divorce, often adjusting awards for compensation.

These non-exhaustive factors grant wide discretion to balance items for a fair outcome.

Key Judicial Principles of Fairness

Courts developed principles of fairness and equality. In White v White [2000] UKHL 54, the House of Lords stressed a fair outcome must not discriminate between breadwinner and homemaker, introducing the “yardstick of equality”. Lord Nicholls advised checking tentative results against equal division of matrimonial assets, departing only for good reason. While no legal presumption of 50:50 exists, equality is a powerful benchmark. White confirmed homemaker contributions are “equally valid and valuable” to the family partnership.

Building on White, Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 established three statutory principles of fairness: needs, compensation, and sharing.

  1. Needs: Prioritises meeting reasonable needs (housing, living costs). If resources are insufficient for two independent households, needs take precedence.
  2. Compensation: Addresses economic disadvantage from marriage (e.g., career sacrifice).
  3. Sharing: Divides remaining wealth, typically equally, especially for surplus assets in high-asset cases. The aim is an “equal start on the road to independent living.” Principles are flexible, allowing order adjustment.

Contextual Considerations

  • Children vs. No Children: For minor children, their welfare is the statutory priority under s.25(1). Needs calculations include their housing, upkeep, and education. Courts may use a deferred-sale “Mesher” arrangement for the main carer to remain in the family home. With no children, this first-consideration drops, but parties’ own needs remain central, shifting weight to their financial circumstances.
  • High-Net-Worth Cases: Principles from Miller/McFarlane apply on a larger scale. After needs, substantial surplus assets are generally shared equally. White v White exemplified this. The “yardstick of equality” remains useful. These cases involve complex asset valuation, tax, and earning potential, which may justify unequal division if fair.
  • Short Marriages: Courts are cautious about treating all assets, especially pre-marital or inherited wealth, as matrimonial. Miller v Miller (3-year marriage) held it unjust to insist on sharing such wealth. Judges typically divide only “matrimonial property” (acquired during marriage), awarding non-matrimonial assets only for needs or compensation. A non-earning spouse often receives capital for housing/living needs and career loss compensation, not an equal share of all wealth. Distinction blurs as marriages lengthen.
  • Contributions (Financial vs. Non-Financial): Section 25(2)(f) gives equal weight to all forms of contribution. White v White emphasised “no bias in favour of the money-earner and against the homemaker.” Homemaking/child-rearing are valued equally to a paying job. The compensation principle may provide extra to a homemaker for lost pension or career path.

Practical Application of Principles

  • Needs, Compensation, and Sharing in Practice: The court’s starting point is to meet needs, calculating reasonable requirements. Limited resources prioritise higher needs. Compensation then addresses long-term disparities caused by marriage; Nicholls LJ noted it would be “extraordinary” if the advantaged party could not be ordered to compensate. Periodical payments or lump sums equalise future earning capacity. Finally, if assets remain, the sharing principle applies, implying roughly equal division in long marriages. Courts avoid double-counting for overall fairness.
  • Spousal Maintenance vs. Clean Break: Courts can order periodical payments (spousal maintenance) for needs or compensation. However, MCA 1973 (s.25A) embodies a “statutory steer” towards a clean break. In Miller/McFarlane, Lord Nicholls stated mutual financial obligations should end “as soon as the court considers just and reasonable.” Lump sums or property transfers are preferred for financial independence. McFarlane (CA) saw maintenance reduced to facilitate a clean break. Orders are often limited or capitalised for finality; maintenance remains available when appropriate.
  • Pensions and Property Division: Pensions are marital wealth under s.25(2)(a). Since the Welfare Reform and Pensions Act 1999, courts routinely make pension-sharing orders, transferring a percentage of one spouse’s pension fund to the other, creating a clean break. If sharing is not feasible, value is reflected through offsetting lump sums or enhanced maintenance.
  • The principle of pension equalisation stems from Barber v Guardian Royal Exchange Assurance Group (1990) (a European Court of Justice case about equal pay/pensions). It is not a direct financial remedy case in the same way White or Miller/McFarlane are. The effect of Barber is that pensions must be equalised in terms of benefits regardless of sex, which then feeds into how they are treated in a financial remedy context (e.g., via sharing or offsetting).
  • Actuarial methods quantify pension values; shortfalls can be compensated. For property, the family home is central. Housing needs are considered under s.24A MCA. Options include ownership transfer, sale and division, or deferred sale via a Mesher order for children. Standard of living ensures home allocation approximates previous lifestyle. Generally, all matrimonial property (acquired during marriage) is shared; non-matrimonial property (inherited or pre-marriage) may remain with the owner unless fairness dictates.

Conclusion

The court’s task in financial remedy proceedings is to balance all s.25 factors to achieve a fair outcome. This involves prioritising the needs of both parties and any children, compensating for marriage-related disadvantages, and then sharing remaining assets, using equality as a yardstick. Specific contexts like high-net-worth cases, short marriages, or the presence of children modify this balance. Judges retain wide discretion, deciding each case on its unique facts, guided by statutory principles and leading case law.

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Example 2

Question‍

Is it possible to temporarily disapply a provision of a company's articles of association?

Verified Answer

Legal Framework

Under English company law, a company incorporated in England’s articles of association may be altered by a special resolution of its members unless more restrictive requirements apply (e.g. entrenchment provisions (see Section 22 Companies Act 2006) and the provisions in any shareholders’ agreement should be checked). If the company is a charity this ability to amend the articles of association may be subject to charities legislation see Section 21 Companies Act 2006.

A special resolution of the members (or a class of members) means one passed by a majority of not less than 75% Section 283 Companies Act 2006.

Note that the Companies Act 2006 contains some statutory safeguards to protect members see, for example, Sections 25 Companies Act 2006 re increasing a members’ liability and Section 994 Companies Act 2006 **unfairly prejudicial conduct. In addition, it has been held that in certain circumstances shareholders have an obligation to exercise their voting powers in good faith and in the best interests of the company.

Under English law there is no express statutory mechanism to temporarily disapply a provision of a company incorporated in England’s articles of association; any disapplication of the articles must be achieved by formally amending the articles, by unanimous consent of the members (under the common law duomatic principle, for further information see heading below) or the articles may include a provision permitting conditional suspension or waiver of a provision in the articles so it is effectively enshrined within the articles themselves, for example, giving a certain class of shareholder the right to disapply early leaver provisions relating to pre-emption rights on the transfer of shares included in the articles of association without having to amend those articles of association. In addition the provisions of any shareholders’ agreement should be checked.

Some practitioners have adopted the view that a one-off disapplication of an article can be achieved by special resolution, using the same power that permits a permanent amendment under Section 21 of the Companies Act 2006. In other words, the members can pass a special resolution altering the articles so that the targeted provision is disapplied only for a particular transaction or time period. This approach still amounts to an amendment of the articles (albeit temporary ) and so all legal conditions for a valid articles amendment apply. For example, any such change must be filed with Companies House in the same way as a permanent alteration.

Duomatic Principle

Some companies attempt to achieve similar outcomes simply by unanimous shareholder agreement without formally amending the articles. Under the Duomatic principle in UK law, if all shareholders entitled to vote assent to a course of action, their informal unanimous consent can in certain circumstances validate an act of the company even if procedural requirements were not strictly followed see Duomatic Ltd, Re [1969] 2 Ch.365 as referred to in Tonstate Group Ltd & Ors v Wojakovski & Ors [2019] EWHC 3363 (Ch). Therefore, in theory, if every member agrees to temporarily disapply a provision of a company’s articles of association, no member would be in a position to dispute the validity of the act. However, this approach creates uncertainty as demonstrated by subsequent case law, see for example the Court of Appeal’s decision in Dickinson & Anor v NAL Realisations (Staffordshire) Ltd & Anor [2019] EWCA Civ 2146.

In the absence of explicit statutory guidance or case law on “temporary” amendments, any one-off disapplication should be approached with formality and caution. The safest method is to draft the special resolution as an amendment to the articles that either self-expires or is limited to the particular event. The amended articles (with the temporary carve-out) should be filed as required by law, even if the change will lapse later. Once the purpose is fulfilled or the time period ends, the company can either leave the now-spent provision in the articles (harmless but obsolete) or pass another special resolution to formally remove the spent wording and revert to the original text. Alternatively, the procedure for a temporary change may involve two mirror-image special resolutions (one to implement the carve-out and one to reverse it).

Conclusion

It is possible to disapply or suspend a provision of a company’s articles on a temporary, one-off basis, but only by using the lawful mechanisms for altering the articles of association, see above.

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Example 3

Question‍

What case law interprets or applies section 94b certification?

Verified Answer

Case Law Interpreting and Applying Section 94B Certification

Section 94B of the Nationality, Immigration and Asylum Act 2002 provides the Secretary of State with a discretionary power to certify a human rights claim so that any appeal may only be brought or continued from outside the United Kingdom. The use of this power has been the subject of significant judicial scrutiny, particularly in relation to its compatibility with Article 8 ECHR (right to respect for private and family life) and the procedural fairness of out-of-country appeals.

Below is a summary of the leading case law interpreting and applying section 94B, with a focus on the key principles established and their practical application.

1. R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42

Court: Supreme Court

Significance: Leading authority on the lawfulness of section 94B certification.

Key Points:

  • The Supreme Court held that the use of section 94B to require appellants to pursue human rights appeals from abroad can, in certain circumstances, breach Article 8 ECHR due to procedural unfairness.
  • The Court emphasised that an effective appeal requires the opportunity to give live evidence, and that the Secretary of State must ensure that such an opportunity is realistically available before certifying under section 94B.
  • The burden is on the Secretary of State to demonstrate that removal pending appeal would not breach the appellant’s Convention rights.
  • The Court found that, at the time, the practical and logistical barriers to giving evidence from abroad (including lack of access to video link facilities) rendered the process unfair.

Practical Impact: Following this judgment, the Home Office paused the use of section 94B certification until adequate video link facilities were established to allow effective participation in appeals from abroad.

2. AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC)

Court: Upper Tribunal (Immigration and Asylum Chamber)

Significance: Guidance on the step-by-step approach to determining whether an out-of-country appeal can be effective.

Key Points:

  • The Tribunal set out a four-stage test for determining whether an out-of-country appeal is procedurally fair:
    1. Has removal deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from UK lawyers?
    2. Is the appellant’s absence likely to impair the production of expert and other professional evidence?
    3. Is it necessary to hear live evidence from the appellant?
    4. If so, can such evidence be given satisfactorily by video link?
  • If the answer to any of these questions is that fairness cannot be achieved, the Tribunal should direct that the appellant be returned to the UK for the hearing.

3. Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC)

Court: Upper Tribunal (IAC)

Significance: Application of the AJ step-by-step approach, with a focus on access to legal representation.

Key Points:

  • The Tribunal reiterated that the right to access legal advice and representation is central to procedural fairness.
  • The question is whether the facts demonstrate an actual impediment to effective legal representation, not merely inconvenience.

4. Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032

Court: Court of Appeal

Significance: Considered the adequacy of video link facilities and data protection issues in out-of-country appeals.

Key Points:

  • The Court found that the use of video link facilities for giving evidence from abroad did not, in itself, breach data protection laws or render the appeal process unfair.
  • The Court recognised improvements in technology and the increased feasibility of remote evidence.

5. FB (Afghanistan) v Secretary of State for the Home Department [2020] EWCA Civ 1338

Court: Court of Appeal

Significance: Commented on the transformation in the use of remote technology in legal proceedings since Kiarie and Byndloss.

Key Points:

  • The Court noted that the widespread adoption of video link technology, especially during the COVID-19 pandemic, has changed the landscape for remote hearings.
  • The effectiveness of out-of-country appeals must be assessed in light of these technological advances.

6. R (Watson) v Secretary of State for the Home Department[2018] UKUT 165 (IAC)

Court: Upper Tribunal (IAC)

Significance: The First-tier Tribunal is the proper forum for determining whether an out-of-country appeal is effective and fair.

Key Points:

  • The Tribunal has a continuing duty to monitor the fairness of the appeal process and can direct the Secretary of State to facilitate the appellant’s return if necessary.

7. R (Nixon) v Secretary of State for the Home Department[2018] EWCA Civ 3

Court: Court of Appeal

Significance: Considered remedies for those removed under an unlawful section 94B certificate.

Key Points:

  • The Court has discretion to order the return of an individual to the UK if an out-of-country appeal would not be effective, but this is not automatic.

8. Other Relevant Authorities

  • OO (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 338: Considered the best interests of children in the context of section 94B certification.
  • CJ (international video-link hearing: data protection) Jamaica [2019] UKUT 126 (IAC): Addressed the practicalities and fairness of giving evidence by video link from abroad.

Summary of Current Legal Position

  • Section 94B certification is lawful only if removal pending appeal would not breach the appellant’s human rights, particularly the right to a fair and effective appeal under Article 8 ECHR.
  • The Secretary of State must ensure that the appellant can participate effectively in their appeal, including the ability to give live evidence, usually via video link.
  • The Tribunal has a duty to monitor the fairness of the process and can direct the appellant’s return if an effective appeal cannot be achieved from abroad.
  • Technological advances have made remote participation more feasible, but each case must be assessed on its facts.

Areas Open for Interpretation

  • The threshold for when remote participation is insufficient remains fact-sensitive.
  • The impact of specific vulnerabilities (e.g., mental health, disability) on the effectiveness of out-of-country appeals is an area of ongoing judicial consideration.

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