Critically assess the impact of White v White [2000] UKHL 54 on the development of the judicial approach to Financial Remedies cases

Questions

The total word count for all questions should NOT exceed 4500 words. Any words over this total will not be marked.

PART A (60 marks)

Critically assess the impact of White v White [2000] UKHL 54 on the development of the judicial approach to Financial Remedies cases. Would further judicial intervention resolve the issues raised by this case and its subsequent use as a precedent or is statutory reform needed? 

(Total for Part A: 60 marks)

PART B (40 marks)

You are a trainee solicitor in the firm of Cuthbertson’s Solicitors of 1 Park Row, Leeds LS1 5HN.You are spending part of your training in the Family Department and your principal is Leila Karel.

You receive the following Memorandum from Leila for action.

Memorandum

From: Leila Karel

To:     Trainee Solicitor

Re:     New Client: Samuel Maluda

As you know, we issued divorce proceedings on this client’s behalf several weeks ago. Please find attached the file note of my attendance with Mr Maluda, which includes a recap of his family circumstances. I have told him that I will write to him today with my advice in relation to possible Children Act proceedings on the various matters listed in the file note and what factors the Court may take into account in determining a case such as this. Could you please set out to me the advice which you would give to Mr Maluda in this case? I want to consider the position before I advise him further.

Critically assess the impact of White v White [2000] UKHL 54 on the development of the judicial approach to Financial Remedies cases.

Set out the advice which you will give to Mr Maluda as regards the possible Children Act proceedings in relation to Daniel. Include in your advice consideration of the factors which the Court will consider in determining what, if any, orders to make.

(Total for Part B: 40 marks)

TOTAL MARKS AVAILABLE: 100 MARKS 

ATTENDANCE NOTE

Date:            XX January 2024

Subject:        Maluda – re: Matrimonial

Reference:   MAL – 0073 

LK attending on Samuel Maluda dob 15/05/1981 (42 years) of 52 Sunnybank Road, Aughton, Holmfield.

You are a trainee solicitor in the firm of Cuthbertson’s Solicitors of 1 Park Row, Leeds LS1 5HN.You are spending part of your training in the Family Department and your principal is Leila Karel.

Noting from the file the following:

• Samuel has been separated from his wife since 10 August 2023 and has recently commenced divorce proceedings.
• Wife is Lilian Maluda dob 07/04/1978 (45 years) residing at 17 Whey Street, Aughton, Holmfield (the family home).
• Date of marriage: 25/07/2015.
• There are no natural children of the marriage. However, wife has children to a previous relationship as follows:

o  Anna Gough aged 23 years (independent)

o Jared Gough aged 20 years (independent)

o Daniel Gough aged 12 years (dob 15/03/2011) still living at home with mother attending Holmfield Leigh High School. He has no contact with his natural father who pays no maintenance. He has no special needs and is fit and well.

• Samuel has always treated Daniel as his own son throughout the marriage and, indeed, in 2018, Samuel formally adopted Daniel. Daniel has a good relationship with Samuel and, up until recently, saw him very frequently - there was no issue over contact and Samuel has always been content, up to now, for Daniel to remain living with his mother.
• Samuel’s occupation: production/machine operator at Koln Mills & Co. Receives a salary of approximately £190.00 per week net. Sometimes receives additional overtime.
• Wife’s occupation: Administrator for Penfield County Council. Receives approximately £1,200.00 pcm (net).
• Samuel is staying rent free in a friend’s flat until financial matters have been resolved from the divorce. Sunnybank Road is the flat he stays in.
• Background and circumstances of separation 
• Wife very jealous; there were constant arguments about him trying to visit his friends and relatives in Gambia, his place of birth (Samuel has lived in England for 20 years and has British citizenship).
• Samuel feels that he has very little opportunity to have contact with his friends and family. Whenever he sees any of his friends locally, wife accuses him of going out and having affairs with other women.
• He has always found it a struggle to visit his family in Gambia. Throughout the marriage, he has tried to encourage and develop a close relationship between his wife and son and his family and has wanted to visit his relatives frequently but his wife has refused to do this. He has suggested that he travels there alone but she has always refused to allow him to go. On the odd occasion when they have gone to Gambia together, they have stayed in a hotel because his family don’t have appropriate accommodation for them to stay in. She has then been unhappy about him going off to see his family and friends while they are there and, again, has accused him of being out looking for other women. There is no reason for her to suspect his behaviour, he has never cheated on her throughout the marriage.
• Samuel found the atmosphere within the marriage very claustrophobic, became unable to cope, and this eventually led to a separation and now divorce.
• Assets of the marriage include the jointly owned family home valued at £200,000, a piece of land in his home country of Gambia, which is owned in the joint names of Samuel and his brother, and a bank account containing the proceeds of a personal injury settlement (£90,000) following an accident at work in which Samuel lost three of his fingers on his dominant left hand. Separate negotiations are underway to divide the marital assets.

Samuel has come to see LK today about Daniel. He would like to be able to take Daniel on a visit to Gambia to see his family. He has already canvassed Daniel’s views on this trip, which would be for a period of three weeks in August. Daniel stated he would like to go – however, three weeks ago, he returned home from a weekend stay with Samuel and apparently told his mum about the proposed trip. Mrs Maluda telephoned Samuel in a state of anger and told him that she would not allow Daniel to go on the trip and has since refused to allow him to see Daniel. 

Daniel has, since then, been texting his dad to say that he is really unhappy with his mum and would like to come to live with Samuel on a full-time basis. Prior to Mrs Maluda stopping contact, Samuel was seeing Daniel about three times a week, including an overnight stay at weekends.

Gave client advice about:

(1) the action he could take in relation to Daniel, as regards;

a.the text messages from Daniel saying he wants to live with Samuel

b.the fact that Mrs Maluda has stopped contact

c.the proposed trip to Gambia.

Explained that a letter confirming this advice would be sent out to him so that he could reflect on it and provide me with his further instructions.