M v M: Financial Misconduct and Subpoenas

Howard Shaw and Mark Emanuel, Barristers 29 Bedford Row and Tony Roe Partner, Boyes Turner, Reading. According to the House of Lords judgments in Miller v Miller; McFarlane v McFarlane [2006] UKHR 24, [2006] 1 FLR 1186 conduct has to be established within the realm of s 25(2)(g) of the Matrimonial Causes Act 1973. Conduct must now be exceptional, defined by Miller as being gross and obvious. One case which fell within that requirement, albeit that the judgment predated Miller was M v M (Financial Misconduct; Subpoena Against Third Party) [2007] FLR (forthcoming). The case is one of the few reported on how to deal with evidence sought from third parties. It is the only case known to the authors where the court has considered the use of subpoenas since the Human Rights Act 1998 came into force. The article gives an in-depth analysis of the case and practice points if instructed on the part of the witness on a subpoena duces tecum. See December [2006] Fam Law for the full article.

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