Jurisdiction

The issue of jurisdiction should be addressed at the outset of the proceedings and dealt with in a procedurally appropriate manner.

Inherent and statutory jurisdiction

Statutory jurisdiction is found in a wide range of domestic legislation including the Matrimonial Causes Act 1973, the Civil Partnership Act 2004 (CPA 2004), the Children Act 1989 and the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973).

Most aspects of family law are governed by domestic statute and statutory instruments together with various Hague Conventions. See practice Note: Hague Conventions—toolkit for family practitioners. However, there remain cases where recourse will be made to the inherent jurisdiction. The inherent jurisdiction is not confined to the wardship jurisdiction, thus it is not necessary for a child to be a ward of court before the inherent jurisdiction may be exercised. The procedure in relation to wardship proceedings is governed by the Family Procedure Rules 2010, SI 2010/2955. In relation to children proceedings the High Court inherent jurisdiction derives from the Royal Prerogative, as parens patriae, ie to take care of those who are not able to take care of themselves.

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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