Sharon Thompson

Prioritising diversity: reflections from the Family Law Classroom

Recent research has found that LGBTQ university students have lesser rates of satisfaction, because their experiences at university are not always inclusive (Grimwood, 2016). This has led to calls for university lecturers to actively identify and challenge incidents of abuse directed at LGBTQ students (Times Higher Education, 2016). This article argues that in addition to challenging abuse, university lecturers must also be prepared to address comments made by students in the classroom when discussing controversial subjects. Specifically, I consider a critical incident which occurred in my Family Law classroom, when students’ anti-Same Sex Marriage sentiments caused offence to others in the room. I conclude that I should not have ignored the comments, and reflect on how I could have responded in a way that would lead to a more inclusive environment for all involved. I suggest that practices which prioritise diversity are crucial (particularly when teaching controversial subjects), as part of broader strategies to promote the satisfaction of all students at university.

‘Miller-lite’: is it fair not to share in short marriages?

In Sharp v Sharp [2017] EWCA Civ 408, the Court of Appeal clarified the circumstances in which it is fair not to share. This is the first time an appellate court has directly determined whether the equal sharing principle can be relaxed in short, childless marriages, 11 years after the principle was originally articulated by the House of Lords in Miller v Miller; McFarlane v McFarlane [2016] UKHL 24. It is apt that Sharp was labelled ‘Miller-lite’ (para. [105]) by McFarlane LJ because it has similar facts to Miller but involves a lower level of wealth. The relationship was short, lasting six years (including, the period of pre-marital cohabitation); the parties had no children, and are in their early 40s. Both parties earned £100,000 per year at the beginning of the relationship, but the wife ultimately earned significantly more than the husband during the marriage as a result of bonuses totalling £10.5 million. One year before the marriage ended in 2013, the husband took voluntary redundancy. An important distinguishing feature from Miller is that the parties were, according to the wife, ‘a genuine dual career family’ (para. [11]) that did not pool their finances, whereas in Miller the wife did not work. At first instance, Sir Peter Singer applied the sharing principle set out in Miller and held that the husband should receive 50% of the matrimonial assets, totalling £2.725 million. He included the wife’s bonuses in the pot of matrimonial assets for division. It is understandable why the judge reached this conclusion. In Miller, the House of Lords reasoned that the wife was entitled to £5 million because this reflected a share in the wealth acquired during the marriage. As Lord Nicholls said, short marriages are no less a partnership of equals (para. [17]). Therefore in Sharp, the bonuses were susceptible to division as they were acquired during the marriage. On appeal, the court set aside the first instance decision, as to the division of capital and instead made a property adjustment order allocating the parties’ first home to the husband and the second home to the wife, with an additional lump sum payment of £900,000 to the husband. Significantly, the Court of Appeal did not include the wife’s liquid capital in the pot of matrimonial assets for equal sharing. And so her bonuses constituted non-matrimonial property. McFarlane LJ’s leading judgement depended on the interpretation of two important points: when the equal sharing principle can be departed from and where to draw the line between matrimonial and non-matrimonial assets in short, childless, dual career marriages.

Behind the veil: Company or family property on divorce?

Mr and Mrs Prest married in 1993 and produced four children. The family lived an extravagant lifestyle, which was largely financed by funds from the husband’s companies. Moylan J determined that Mrs Prest was to be awarded £17.5 million following the parties’ divorce. The principal issue for the Supreme Court in Prest v Petrodel Resources Ltd [2013] UKSC 34 was whether several properties legally owned by Mr Prest’s companies (including the leading defendant, Petrodel Resources Ltd) could be transferred to Mrs Prest to partially satisfy her award. To address the question of entitlement to the companies’ properties, at first instance Moylan J considered the application and scope of section 24(1)(a) of the Matrimonial Causes Act 1973, which states that a property adjustment order may be made in favour of the applicant in respect of ‘property to which the first-mentioned party is entitled, either in possession or reversion’. Moylan J decided that as the sole shareholder of the companies, the husband was effectively the owner of the companies’ properties due to his practical control of them. On this reasoning, Moylan J held that section 24 could apply to those properties and ordered them transferred to the wife. The Court of Appeal overturned this decision (Thorpe LJ dissenting). The majority asserted it was wrong to decide that the husband’s absolute control of his companies created a property interest in the assets owned by those companies. Pursuant to Salomon v A Salomon and Co Ltd [1897] AC 22, the personalities of the husband and his companies are distinct and are divided by a corporate veil, which cannot be disregarded to satisfy the personal liability of the company owner. In other words, Petrodel Resources Ltd and the other co-defending companies are separate parties with separate ownership interests to the husband. Since the husband did not own the properties that were in his companies’ names, s. 24 could not be used to transfer them to the wife unless there was an exception to the rule in Salomon, allowing the court to ‘pierce’ the corporate veil. The Court of Appeal held that neither s. 24 nor general policy considerations created such an exception in matrimonial finance proceedings. On appeal to the Supreme Court, the leading judgment was provided by Lord Sumption, who contemplated three potential ways the properties behind the corporate veil could be reached and subsequently transferred to the wife (para. 9): (1) That the corporate veil could be disregarded or pierced; (2) That s. 24 could confer a distinct power to the court, which could be used to disregard the corporate veil in ancillary relief proceedings;