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Help needed to find case law

  • poppy5
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15 Jul 12 #343263 by poppy5
Topic started by poppy5
Hi

Can anyone provide a link to

Smith v McInerney [1994] 2 FLR 1077

Or failing that, copy/paste/summarise the outcome of the husbands appeal, to move away from the Separation Agreement, as a result of being made redundant ?

Kind of need to know by bedtime tonight ... :(

Many many thanks !

poppy

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15 Jul 12 #343267 by rubytuesday

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15 Jul 12 #343271 by poppy5
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Ruby thanks but I think I need to see the whole judgement - to see if the redundancy had any impact on the enforcement of the Separation Agreement.

Thanks for trying though

poppy

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15 Jul 12 #343272 by u6c00
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H had entered into a Separation Agreement with his wife, but now sought a lump sum and property adjustment order when his circumstances changed as a result of being made redundant. Held: Thorpe J cited Edgar v Edgar and Camm v Camm and said: "As a matter of general policy I think it is very important that what the parties themselves agree at the time of separation should be upheld by the courts unless there are overwhelmingly strong considerations for interference."

Taken from www.swarb.co.uk/lisc/Famly19941994.php

I''ll keep looking for the full judgement

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15 Jul 12 #343303 by poppy5
Reply from poppy5
Thankyou.

What does HELD mean ?

Does HELD mean he won his case to change the terms of the agreement because of his redundancy/change of circumstances ?

..... despite Thorpe stating the Separation Agreement should be upheld unless blah blah blah....

poppy

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15 Jul 12 #343308 by u6c00
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That was my interpretation, but I can''t find the judgement in full anywhere on bailii. I''m not sure why, it appears to have been given in open court.

I also found this:

Smith v McInerney: a postscript

A short postscript to H’s arrangement with his former wife arises from Smith v McInerney [1994] 2 FLR 1077, [1994] 2 FCR 1086. Section 9(4) of the Child Support Act 1991 (CSA 1991) renders void any agreement “which purports to restrict the right of a [parent] to apply for” child support maintenance. Despite the agreement, nothing could have stopped W—in the unlikely event that she chose to do so—applying for child maintenance. Had she applied, Sumner J might have treated the equities differently. Similarly any Consent Order based on capital provision in exchange for buying off child periodical payments will be undermined if a parent applies, or is required to apply—s 6, CSA 1991: parent receiving a prescribed state benefit—for child maintenance.

Mr Justice Thorpe (as he then was) suggested a way around this. A nominal charge-back on the capital exchanged for child maintenance could be retained. If a parent was required to, or did, apply under CSA 1991 then that nominal charge could be increased by the amount the parent was required to pay via the Child Support Agency. An adviser who fails to alert clients to the pitfalls inherent in s 9(4), CSA 1991, and to cover them with a Smith v McInerney agreement, might be thought to be negligent if an application is later made to the agency.

www.newlawjournal.co.uk/nlj/content/finance-family-breakdown-1

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15 Jul 12 #343310 by u6c00
Reply from u6c00
Also:

In Smith v McInerney [1994] 2 FLR 1077 the husband, who had entered
into a Separation Agreement with his wife, sought a lump sum and property
adjustment order when his circumstances changed as a result of being made
redundant. Thorpe J cited Edgar v Edgar and Camm v Camm and remarked at p
1081:
“As a matter of general policy I think it is very important that what
the parties themselves agree at the time of separation should be
upheld by the courts unless there are overwhelmingly strong
considerations for interference.”

www.supremecourt.gov.uk/docs/UKSC_2009_0031_Judgment.pdf

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