Topic Archives: Family Law

A paragraph in the Throne Speech in November of 2013 heralded a proposed change to the Children Act, 1998.

The need to incorporate family mediation into the Act was recognized as a prerequisite for co-parenting orders rather than arising only as a result of a parent’s non-compliance with some existing order. This proposed move to formalize the requirement for mediation brings Bermuda into line with the current practice in many jurisdictions. Read More «»

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The principle of separate legal personality of a company has been affirmed in yesterday’s Supreme Court case of Prest v. Petrodel Resources Limited, and the principles upon which the court will act to “pierce the corporate veil” have been clarified, but it remains the case that upon divorce, the court will look carefully at the reality of the structure to achieve a fair distribution of assets. The decision has important implications for all those engaged in the trusts and corporate services business.

A unanimous Supreme Court overturned the decision of the Court of Appeal yesterday in the case of Prest v. Petrodel Resources Limited and others [2013] UKSC 34 (400 KB PDF). At stake was the issue of whether it is open to the court, in an application for ancillary relief in divorce proceedings, to treat assets of a company of which one spouse is the sole controller as being assets to which that spouse is “entitled” for the purposes of Section 24(1)(a) of the Matrimonial Causes Act 1973. Lying at the heart of the matter are the competing objectives of the commercial and family law divisions, the former of which seeks adherence to established legal principles to ensure commercial certainty for parties dealing at arm’s length, while the latter aims to achieve a “fair result” in circumstances where the parties are dealing at anything but arm’s length. Read More »

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In an effort to achieve a fair division of matrimonial assets, the Court is increasingly demonstrating its willingness to scrutinise the beneficial interests of divorcing spouses under family trusts.

A high divorce rate seems to have become the norm rather than the exception in the western world. This reality, and the Court’s determination to achieve fairness on the dissolution of marriage, has generated a measure of uncertainty with respect to the treatment of trusts. In a discretionary trust context, a beneficiary has only a right to be considered in the exercise of the trustees’ discretion and this has shielded beneficiaries on divorce, who had no fixed entitlement to any portion of the trust fund. However, the Court, in divorce matters, is concerned about achieving a fair division of marital assets and increasingly has taken the view that a divorcing spouse’s interests under a trust should be subjected to closer scrutiny. Read More »

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This year’s event marked the seventh legal clinic that MJM Limited has hosted with Age Concern, a registered charity (#561) dedicated to meeting the needs of seniors in the local Bermuda community. Attendees were able to participate in a seminar on essential estate planning tools, which was led by MJM Director Hil de Frias, as well as attend interview sessions with individual attorneys from the firm.

Here’s a short 6 minute video about the event: Age Concern Bermuda and MJM present the 2013 Annual Free Legal Clinic (video).

Two of the more pressing items that were identified during this year’s legal advice sessions were Powers of Attorney and Wills. My colleague Emily Deane and I have written on Wills in recent posts Advantages of using an Attorney to prepare your Will and With a Will There is a Way so this article will focus on the value of Powers of Attorney. Read More »

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In this article I will address some of the general principles of Bermuda divorce law and also take a look at some misconceptions which are fairly widely held. At the outset, however, I must stress that time and space will not permit a very detailed analysis and I would counsel anyone engaged in, or considering, a divorce to seek the advices of an experienced matrimonial lawyer.

Firstly, let’s look at jurisdiction. Sometimes clients are confused about their right to initiate a divorce in Bermuda. Ours is a cosmopolitan population and many clients will have been married overseas, leading some of them to believe that any divorce must take place in their “home” jurisdiction. Not so. If either party to the marriage is “domiciled’ in Bermuda (in effect, Bermuda is home) or has been resident continuously in Bermuda for one year or more, our courts can entertain a divorce petition. Read More »

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