FAMILY
Conduct - short marriages - pre-marital wealth - big-money cases

Sir James Paul McCartney v Heather Anne Mills McCartney: Fam Div (Mr Justice Bennett): 17 March 2008

The applicant wife (W) sought financial provision from the respondent husband (H), who was a famous musician. W was a model, public speaker and television presenter.



W and H began a relationship in 1999, became engaged in 2001, married in 2002 and separated in 2006. They had a daughter (D), who was born in 2003. The parties sought a clean break. W's claim for financial provision amounted to £125 million. H argued that W was entitled to £15 million of assets, the reasonable cost of security for W and D for two years not exceeding £150,000 per annum, periodical payments of £35,000 per annum for D, and to a nanny, the cost of whom was not to exceed £25,000 per annum. Furthermore, H would discharge D's school fees and associated expenses.



W submitted that (1) as before her marriage she was wealthy and independent with assets totalling between £2 million and £3 million, she was entitled to compensation, since H had restricted the development of her career; (2) owing to her exceptional contribution to the marriage, she was entitled to a share in the marital acquest; (3) H was worth £800 million; (4) her reasonable needs for herself and D were £3.25 million per annum. She further sought a property adjustment order in respect of two properties in the United States; between £8 million and £12.5 million for a home in London; £3 million to purchase a home in New York; £500,000 to £750,000 to purchase an office; a transfer to her of a mortgage in favour of her sister's property; a transfer of property order regarding another property; and relief in respect of chattels. W asked the court to place a significant monetary value on compensation for loss of earnings, contribution and conduct.



H submitted that he was worth £387 million and that, owing to his enormous pre-marital wealth and the short duration of the marriage, W's claim should be determined by reference to the principle of need alone, and that it was neither a case where the principle of sharing of the marital acquest was engaged at all, nor one where the principle of compensation would arise. H argued that W's needs fell to be fairly assessed, and not predominantly by reference to the standard of living during the marriage. Both parties wished the other's conduct to be taken into account.



Held: (1) Much of W's evidence was not just inconsistent and inaccurate, but also less than candid. She was a less than impressive witness. W's case that she was wealthy and independent before meeting H was not accepted. There was a lack of documentary evidence to support her case as to the level of her earnings, and her tax returns did not support it.



Her claim as to her wealth in 1999 was wholly exaggerated. The couple's committed relationship began on their marriage in June 2002 and not, as W maintained, from March 2000. Contrary to W's assertion, the evidence showed that W's income improved during her relationship with H and that he supported her career. Therefore, the question of compensation did not arise.



(2) W's case that her contribution to the marriage had been exceptional was devoid of reality, Miller v Miller [2006] UKHL 24, [2006] 2 AC 618 applied.



(3) H's total wealth amounted to approximately £400 million and W's assets totalled £7.3 million. There was no reasonable expectation that W's marital lifestyle would continue after her marriage breakdown and £500,000 was added back into the calculation of W's assets to represent her completely unreasonable expenditure over the 15-month period during which she spent £3.7 million after the breakdown of the marriage. Thus, W's assets totalled £7.8 million.



(4) W's case overlooked the fact that all H's properties were acquired before their marriage, with the exception of one US property. She had no need of a home in the US and there was plenty of room for an office at her home. It was important that she was assisted to recover and develop her earning capacity, so she would need a London property to the value of £2.5 million. W required £600,000 per annum to allow her to adapt to a standard of living that she could expect as a self-sufficient woman. After a short marriage to a very wealthy man, it was unfair to expect that she should continue to live at the same 'rate' as during

the marriage.



(5) D's needs were met with H's offer of £35,000 per annum, but she was entitled to a good nanny at a maximum salary of £30,000 per annum.



(6) Neither party was permitted to introduce allegations of either marital or post-separation conduct as it would take days or weeks to hear and decide, and it made no difference to the result. It was plainly not conduct which it would be inequitable to disregard, and it did not come within section 25(2)(g) of the Matrimonial Causes Act 1973.



(7) H was ordered to pay W a lump sum of £16.5 million so that she would leave the marriage with property and funds to the value of £24.3 million.



Award made.



The applicant appeared in person; Nicholas Mostyn QC, Timothy Bishop (instructed by Payne Hicks Beach) for the respondent.





Capacity - consent - Islamic law - marriage - validity

(1) KC (2) NNC v (1) City of Westminster Social & Community Services Department (2) IC (a protected party, by his litigation friend the official solicitor): CA (Civ Div) (Lords Justice Thorpe, Wall, Lady Justice Hallett): 19 March 2008

The appellants (K and N) appealed against a declaration ([2007] EWHC 3096 (Fam)) that the marriage of their son (C) was not valid under English law.



K and N were British nationals of Bangladeshi origin who were domiciled and habitually resident in England and Wales. C, who suffered from autism and severe impairment of his intellectual functioning, lacked the fundamental capacity to marry under English law. Marriage was not, however, precluded in Bangladesh and C was married in a Muslim ceremony conducted over the telephone, he being in England and his bride being in Bangladesh. The parties accepted that, as a matter of law, the marriage had been celebrated in Bangladesh. In declaring the marriage to be invalid under English law, the judge applied the dual domicile rule, refused recognition of the marriage on the grounds of public policy and rejected submissions made by K and N that, pursuant to section 12(c) of the Matrimonial Causes Act 1973, the marriage was merely voidable rather than void and the court therefore had no power to deny it recognition. The issue was whether he had been right, on those bases, to make the declaration he did.



Held: (1) The dual domicile rule was a rule of general application and was not limited to those cases in which the marriage was prohibited in the jurisdiction of the domicile of one of the parties, X City Council v MB [2006] EWHC 168 (Fam), [2006] 2 FLR 968 approved. Even though there was authority to the effect that there were alternative bases for the recognition of a foreign marriage falling foul of the dual domicile rule, such exceptions to the rule did not assist N and K, and the judge had been correct in his application of it, Vervaeke v Smith [1983] 1 AC 145 HL distinguished.



(2) Equally, the judge had been correct to introduce public policy considerations. Not every marriage that was valid according to the law of some friendly foreign state was entitled to recognition in England and Wales, Cheni (otherwise Rodriguez) v Cheni [1965] P 85 PDAD considered. C lacked the capacity to marry in English law and it was inconceivable that he could be lawfully married in England and Wales. There was expert evidence to suggest that the marriage was potentially highly injurious to him and, moreover, were his wife to engage in physical intimacy with him she would be guilty of rape or sexual assault under English law. N and K's engineering of the marriage was potentially, if not actually, abusive to C and it was the duty of the court to protect him from such abuse. The refusal of recognition of the marriage was an essential foundation of that protection and was justified even if not precedented.



(3) The judge had, however, been wrong to reject submissions founded on section 12(c) of the act. The reasoning in Roberts (Deceased), Re [1978] 1 WLR 653 CA (Civ Div) was clear and binding; lack of consent made a marriage voidable rather than void, Roberts followed. Moreover, the Family Law Act 1986 made it clear that no declaration could be made by a court to the effect that a marriage was at its inception void. The only route to a judicial conclusion that a marriage was void at its inception was a petition for nullity. Had the judge had his attention drawn to the provisions of the 1986 Act, he would not have made the declaration that he did. The appeal would therefore be allowed, but only to the extent of varying the language of the declaration so that it declared that C's marriage, valid according to the law of Bangladesh, was not recognised as a valid marriage in the jurisdiction of the English courts.



(4) The parties' acceptance that the marriage had been celebrated in Bangladesh meant that the issue of the place of celebration of the marriage had been dealt with without the investigation it required. However, in cases of marriages contracted by transnational telephone calls, the ascertaining of the place of celebration was likely to involve difficult problems of great legal significance, and the court did not wish to endorse whatever consensus had been reached between the parties in the instant case to the effect that the marriage was celebrated in Bangladesh.



Appeal allowed in part.



J Luba QC, S Knafler (instructed by Bennett Wilkins) for the appellants; A Verdan QC (instructed by Creighton & Partners) for the first respondent; A Ball QC, A Bagchi (instructed by Irwin Mitchell) for the second respondent.





Supervision orders - duration - guidelines - statutory interpretation

T (a child) v Wakefield Metropolitan District Council: CA (Civ Div) (Lords Justice Thorpe, Hughes, Lady Justice Arden): 19 March 2008

The appellant father (F) appealed against a decision of the judge that a supervision order was not confined to a maximum of 12 months. The respondent local authority had applied for a supervision order in respect of a three-year-old girl (T).



While the capacity of T's parents to provide adequate parenting was not in question, she was at risk from a member of the extended family, namely her maternal grandmother's partner who had a long criminal record for sexual offences. It was not disputed that he was and was likely to remain a danger to T, at least until T was better able to protect herself. The judge considered that a supervision order should be made, and

he went on to consider its duration.



He agreed with the local authority's submission that T's welfare required an extended order of up to three years, and made such an order. F sought permission to appeal, limited to the question of whether the judge had jurisdiction to make a supervision order of more than 12 months' duration. The judge found that there was no barrier, even at the stage of the first hearing of an application, to making an order that extended from the regular 12-month order for up to three years. Nevertheless, he granted permission to appeal. The construction of the statutory provisions contained in the Children Act 1989 governing the duration of supervision orders fell to be determined.



Held: (1) The words of paragraph 6 to schedule 3 to the Act were on their face reasonably clear. By paragraph 6(1), a supervision order ceased to have effect at the end of a one-year period beginning with the date on which it was made. Paragraph 6(3) permitted the court to extend, or further extend, for such period as it might specify. However, para 6(4) prohibited extension, or further extension, beyond the end of the period of three years beginning with the date on which it was made. Paragraph 6(1) did not allow the making of a supervision order for three years from the outset. In a case such as the present one, the judge could only provide three years' protection by making at least two orders, the first a supervision order of 12 months' duration and the second an order extending the first for a further two years, A (A Minor) (Supervision Order: Extension), Re [1995] 1 WLR 482 CA (Civ Div) applied.



(2) The court gave guidance and suggested the practice to be followed in extending supervision orders. Before any extension was sought, the need for and the acceptance of extension should be canvassed in correspondence. That exploration would reveal whether the extension was consensual and, if not, the extent of the dispute. The issue of any necessary application should not be delayed so as to imperil a local authority's imperative need for a determination before the expiration of the current order, as once the order had expired the applicant would be compelled to prove and the court to determine the section 31 threshold, since the application would have become not an application for extension by an application for a new order. It was to be doubted whether there would be a need for an application to extend a supervision order of 12 months' duration before the last quarter of its life, but how well within that quarter the application should sensibly be issued depended on the facts of

each case.



Appeal allowed.



E Hamilton QC, S Switalski (instructed by JWP) for the appellant; A Hayden QC (instructed by the in-house solicitor and Michael George & Co) for the respondents.





CRIMINAL

Child sex offences - sexual assault - rape - sentence length

R v O: CA (Crim Div) (Lady Justice Hallett, Justice Penry-Davey, Judge Radford QC): 19 March 2008

The appellant (O) appealed against a sentence of 20 years' imprisonment imposed following convictions for three counts of indecent assault on a female, six counts of rape, assault by penetration of a child, two counts of sexual assault on a child under 13 years old and indecency with a child. The victims of the offences were members of his wife's family and were between the ages of four and seven at the time the offences began. The judge commented that the rapes were numerous and made over a period of time, that he considered O to be a threat to other young girls, and that O had committed a terrible breach of trust. He observed that the victims had been chosen because they were so young and innocent, probably because they did not understand what was happening. O had one previous conviction for a sexual offence, which had been committed a considerable time before his trial for the present offences.



The judge sentenced O to 20 years for the rape offences and all the sentences imposed were to run concurrently. O submitted that the sentence of 20 years for the rape offences was too long on the basis of R v Millberry (William Christopher) [2002] EWCA Crim 2891, [2003] 1 WLR 546, and that the starting point when sentencing for a campaign of rape was 15 years.



Held: Millberry referred to a starting point and not a finishing point, Millberry considered. Furthermore, O was convicted of specimen offences under the Sexual Offences Act 2003 to which the sentencing guidelines, rather than Millberry, applied. The present case involved a terrible breach of trust, the offences were numerous, there were a number of specimen counts, the first assault was committed when one of the victims was five or six years old, and they continued over many years. There was also effectively no mitigation. The judge was entitled to reflect the aggravating factors. He was sentencing for the rape offences but also other offences. In all the circumstances, whilst a 20-year sentence was severe and at the top of the appropriate bracket, it was not manifestly excessive.



Appeal dismissed.



Patrizia Doherty for the appellant; Mark McKone for the Crown.





LANDLORD AND TENANT

Road traffic - car-parks - parking - regulation

Syed Mohammed Azhar Shah & Ors v Colvia Management Co Ltd: CA (Civ Div) (Lords Justice Pill, Maurice Kay, Lloyd): 18 March 2008

The appellant (C) appealed against a declaration granted in favour of the respondents (S) that a car-parking control scheme which it sought to introduce was unreasonable and invalid.



C was a management company that owned and controlled an industrial estate comprising some 87 industrial units with areas for parking. The units were leased on long leases and the lessees were all shareholders in C. S were a group of lessees who ran car repair businesses.



While there were differences between the extent to which individual lessees used the parking areas, the estate's car parking space was, overall, inadequate to meet demand. Moreover, the local authority levied non-domestic rates on C in respect of the parking areas, and C had to raise the money to pay that liability.



To deal with both issues, C proposed a scheme under which overnight parking would be banned, except in certain limited circumstances on the payment of a fee. The scheme was approved by a majority of the lessees who voted. S, whose demand for parking spaces and overnight parking was particularly high, objected to the scheme on the basis that it would affect their businesses disproportionately, would impose an unreasonable restriction on overnight parking, and would lead to a different incidence of the burden of the rates liability than that provided for under the service charge provisions of the leases. While the judge did not find an overnight ban to be of itself unreasonable, he found the scheme to be unreasonable on the basis that in setting the overnight fee, C had not researched or considered the proper local market rate for overnight parking, but had simply settled on a figure that would cover the non-domestic rates bill. He also found the scheme to be unreasonable in that it meant that the rates bill would be borne by those lessees requiring overnight parking rather than being shared out among the lessees as a whole, as envisaged under the terms of the leases.



C submitted that the judge had been wrong to (1) rely on the failure to research the local rates of charge, there having been no evidence that the fees charged were unreasonable; (2) reject the scheme when he had accepted that, in its main features, it was reasonable.



Held: (1) Whether or not the scheme was unreasonable depended on its terms, not on how those terms had been arrived at. Therefore, if the proposed fees were reasonable, it mattered not how they had been arrived at. Without evidence, the scheme could not be regarded as unreasonable on the basis that the proposed fees were unreasonable. The judge had reversed the burden of proof: it was for S to prove that the scheme was unreasonable, not for C to prove that it was reasonable. It was for those who asserted that a scheme was unreasonable to prove that it was, and in order so to prove, it had to be shown that the basis on which the decision to promulgate the scheme was founded was not one which a reasonable management company could have adopted in the circumstances, International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513 CA (Civ Div) applied. In the absence of evidence from S that the proposed fees were unreasonable, it was not open to the judge to strike down the scheme on that ground.



(2) The point of the scheme was that, to alleviate the problem of parking in the day, especially in the morning, overnight parking should be prohibited. It could not be regarded as unreasonable in principle that those who benefited by way of an exception to the overnight parking ban should pay a fee for the privilege so as to ration the demand and contribute to the cost of running the scheme. That was so even if it meant that part of C's expenditure, which would otherwise have been recovered by way of a service charge, was met in a different way and did not, therefore, have to be passed on to the generality of lessees.



There was no general rule that expenditure such as the rates liability had to be recovered by way of service charge and not in any other way. Moreover, it was wrong to regard the prospective receipt by way of parking fees as paying for the rates liability rather than for any other aspect of C's expenditure.



The real issue was as to the intrinsic reasonableness of the scheme, not whether the rates liability should be met by some other system of contribution. The declaration that the scheme was unreasonable was set aside.



Appeal allowed.



Michael King (instructed by Wellers) for the appellant; Martin Young (instructed by H Montlake) for the respondents.