The three regimes
James delivered a highly comprehensible and exhaustive analysis of the three regimes (CS1 1993 – 2003, CS2 2003 – 2012 and CS3 2012 to date) focusing on jurisdiction, CS3 and then highlighting traps for the unwary. Figures for March 2016 show that combined arrears accrued under CS1 and CS2 are £3.7 billion. 70% of parents in CS3 are paying directly but are perhaps naïvely assumed to be behaving themselves and paying in full! CS1 and CS2 cases have been terminating between 2014 and 2017, with an end of any obligation to pay. Arrears will be carried forward into CS3.
Jurisdiction and guidance from the courts
Consideration first has to be given to the jurisdiction – geography, the child’s ‘age and stage’, parentage, the need for separate households and the presence or otherwise of a court order. Where the CMS has jurisdiction, the court’s powers are very limited, but extend to agreement, top-up payments, educational costs, costs associated with disability and reverse orders (possibly – see N v C
 EWHC 399). Agreements in court orders to exclude the CMS are void (s 9(4) CSA 1991). Even if the CMS does not have jurisdiction the courts have urged parents to apply the formula: see GW v RW
 EWHC 611 (Fam),  2 FLR 108 – a CS2 case, and more recently TW v TM (Minors) (Child Maintenance: Jurisdiction and Departure from Formula)
 EWHC 3054 (Fam),  2 FLR 1386 where Mostyn J approved the formula even where the earnings of the paying party exceed the statutory maximum.
What has changed since 2014?
The most significant changes under CS3 have been in the scope for variations of decisions, with the removal from consideration of hypothetical income (at 8%!) generated by assets of over £65,000 and of a ‘lifestyle inconsistent with income’ formerly available in CS2. The centrality of the paying party’s tax return can lead to some unfair results, not least because it focuses on the income in the previous tax year. Paying parties (eg the self-employed) can ensure that some income is never seen by the receiving parent – especially if well-behind with the filing of their tax returns. There is no appeal if the paying parent is obviously lying about income: only if income has arguably increased by 25% can a reassessment of current income be requested.
180° turn in public policy
James observed that the statutory regime’s original professed aim of drawing all child support disputes under its umbrella had been expressly reversed so as to deter parents from approaching the CMS and to encourage self-authored solutions without the need for the ‘collect and pay’ scheme (for which the paying party pays 20% on top, and the receiving party 4% of the maintenance figure). The role of the information service CM Options has changed from concerned, informative sign-poster to officious gate-keeper. However, perhaps the new policy of encouraging paying parents to pay first, argue later (and pay 20% on top if wrong) may obviate many enforcement applications.
According to the Child Support Calculations Regulations 2012, disputes as to quantum of shared care arrangements effectively lead to a one-seventh reduction in child maintenance (reg 47), and if care is completely equal, there may in fact be no paying parent (reg 50). James warned that if the CMS has got the numbers wrong then there is a period of just 28 days to ask for a ‘mandatory reconsideration’ and then, if no remedy has been found, a further 28 days to appeal to the First Tier Tribunal.
Don’t be negligent!
James concluded that practitioners should ensure that their clients are properly advised of the transience of court orders, the fact that many of the variables at play are in control of the paying party (geography (jurisdiction), pensions, school fees, contact costs, possibly income), and that the CMS is about rules not about fairness.
TOLATA: law, practice and procedure
Andrzej Bojarski and Rhys Taylor delivered an informative and comprehensive guide aimed at family practitioners seeking to apply their legal skills in cohabitee property disputes. However, it was emphasised that one cannot simply dip one’s toe into this area of the law.
It’s not fair!
Andrzej and Rhys began by outlining the stark differences between TOLATA disputes and matrimonial disputes. Property ownership is governed by the laws of express, constructive and (occasionally as in Laskar v Laskar
 EWCA Civ 347,  2 FLR 589) resulting trusts. TOLATA 1996 cases can frequently end up being ‘all or nothing’ rather than ‘tot up the assets and divide by two’ (the simplified view of matrimonial proceedings!), and the outcome can depend on what was said many years ago. The case will be backward-looking with little application – if any – of the principle of fairness.
Many disputes can simply be resolved by referring to the express trust declared at the time of purchase. However, if there is no express trust for a jointly-owned property, the quantum of contributions made at the outset is of lesser significance than what the contributions say about intentions. Arguments about gifts, loans and contributions may abound. Furthermore, just because the purpose for which a property was purchased has come to an end, there will be no alteration of shares, without more – Turton v Turton
 Ch 542.
Key differences from matrimonial disputes
Endless pre-litigation correspondence detailing intentions and assertions can later become a cross-examiner’s paradise. Details matter, importance attaching to careful pleadings, dates, places and the detail of what was agreed at the time. Detrimental reliance on an agreement will need to be established. Front-loading of costs is to be expected, not least because conferences with counsel are advisable prior to the sending of a pre-action letter. Then there is the litigation risk: no client should ever be allowed to proceed to trial without knowing fully the consequences of what they are doing, not least given the fact that costs orders are likely to be made. If a poorly thought-through case is set out on a claim form, it can be very difficult to row back from inadequate pleadings and inexplicable omissions. Nonetheless, once the preparatory work is complete, the family lawyer’s soft skills and negotiation skills can play their part, not least in the pursuance of ADR in the form of mediation (involving lawyers). Arbitration is particularly appropriate for TOLATA disputes.
Rhys and Andrzej reminded those present of the confusing point that claims to beneficial ownership of property under a trust are for EU purposes rights in personam, not rights in rem (se Webb v Webb
 QB 696 and Prazic v Prazic
 EWCA Civ 497,  2 FLR 1128) but that a claim for an order for sale is a claim in rem and hence has to be brought in the jurisdiction where the property is situate G v G (TOLATA Application: Jurisdiction)
 EWHC 2101 (Fam),  Fam Law 454 (currently under appeal), and the Finnish case of Komu v Komu and Others
 4 WLR 26.
An additional claim to TOLATA: proprietary estoppel?
The recent ‘Cowshed Cinderella’ decision of Davies v Davies
 EWCA Civ 463,  Fam Law 815 and the useful judgment of Moore v Moore
 EWHC 2202 (Ch),  Eld LJ 388 have helpfully set out the principles of proprietary estoppel. Rhys and Andrzej emphasised the continued importance of proprietary estoppel in cohabitation disputes, together with the unpredictability of such arguments and their sensitivity to facts. The claimants in both Southwell v Blackburn
 EWCA Civ 1347,  2 FLR 1240 and Liden v Burton
 EWCA Civ 275,  Fam Law 687 received relatively modest amounts, thus focusing legal minds on the risks and proportionality of embarking upon such litigation.
Buy-outs, equitable accounting, chattels, gifts and joint accounts
The particular features of orders for sale and of ‘buy-outs’ (see now Bagum v Hafiz
 EWCA Civ 801,  2 FLR 337) were addressed as were the principles of equitable accounting. The seminar also gave helpful guidance on the thorny question of unilateral improvements to property – highlighting the continuing utility of the case of Leigh v Dickeson
(1884) 15 QBD 60 and the useful rule as to the lower of the costs of the works or of the increase in value found in Re Pavlou
 1 WLR 1046. Claims regarding chattels can be made pursuant to s 188 LPA 1925. After some brief words about partnership assets, children’s property shares and gifts, Rhys and Andrzej considered in detail the legal position with respect to joint bank accounts / choses in action, and the view of Morgan J in Drakeford v Cotton
 EWHC 1414 (Ch).
Playing by whose rules?
In light of the applicability of the CPR 1998, Rhys and Andrzej had produced a helpful procedural table. They also offered tips on gathering evidence, and on which documents would likely assist – eg TR1, office copies, conveyancing files, emails, mortgage applications, insurance documents, utility bills, wills, receipts, proofs of income, and correspondence about the purchase and intentions as to ownership. The importance of the complex Precedent H form was also emphasised.
The day was densely packed with all sorts of arcane and helpful pointers but it was also full of practical and directly applicable advice. The event was very well attended and early booking for next year’s instalment is recommended.
The full version of this article appears in the January 2017 issue of Family Law.
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