Evidence and disclosure

Witness evidence in family proceedings

In contested proceedings the court will often hear evidence from witnesses. The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pts 17, 22 and 24 apply to witness evidence in family proceedings. An affidavit is the testimony of the person who swears it. A witness statement is the equivalent of the oral evidence the maker would give if called to give evidence.

The general rule is that any fact that needs to be proved by the evidence of witnesses is to be proved:

  1. at a final hearing—by oral evidence

  2. at any other hearing—by evidence in writing

The general rule does not apply to proceedings under FPR 2010, SI 2010/2955, Pt 12 for a secure accommodation order, or an interim care or supervision order, or where the court orders otherwise, or where FPR 2010 or any other enactment provides otherwise (for example, section 45(7) of the Children Act 1989 (ChA 1989), which makes provision as to evidence on an application for an emergency protection order).

The court is entitled to limit cross-examination in furtherance of the overriding

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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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