Evidence and procedure

Evidence in private law children proceedings

There are three forms of evidence:

  1. oral evidence by witnesses—note that the court may allow a witness to give evidence through a video link or by other means

  2. documentary evidence, such as statements, reports, photographs and case records

  3. real evidence, such as a site visit or marks on a person’s body

Under the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 22 the court is given wide powers to control the way in which evidence is given. It may give directions as to:

  1. the issues on which it requires evidence

  2. the nature of the evidence that it requires to decide those issues, and

  3. the way in which the evidence is placed before it

It may exclude evidence that would otherwise be admissible.

A child’s unsworn evidence is admissible if they understand the duty to tell the truth and they have adequate understanding.

The general rule is that all competent witnesses can be compelled to give evidence. Refusal to be sworn, or refusal to answer questions, is contempt of court. The court has a residual

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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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