Family Law Hub

G v G [2014] EWCA Civ 1378

Application for permission to appeal a financial remedy decision on the basis that the lump sum that was ordered, which was based on the valuation of an Indian property, was done so in circumstances where valuation evidence was not properly adduced. Permission was granted.

  • B6/2014/0087

    Neutral Citation Number: [2014] EWCA Civ 1378

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

    (JUDGE O'DWYER)

    Royal Courts of Justice

    Strand

    London, WC2A 2LL

    Wednesday, 8th October 2014

    B E F O R E:

    LORD JUSTICE RYDER

    - - - - - - -

    G

    Appellant

    -v-

    G

    Respondent

    (Computer-Aided Transcript of the Stenograph Notes of

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    Mr D Watson (instructed by Zaiwalla & Co) appeared on behalf of the Applicant

    J U D G M E N T

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    LORD JUSTICE RYDER: This is an application for permission to appeal a Financial Remedy decision made by his Honour Judge O'Dwyer on 6th February 2014 whereby a lump sum of £200,000 was to be paid to the respondent wife from the net proceeds of sale of the former matrimonial home, and 50 per cent of the balance of those proceeds was to be divided equally between the wife and the husband on a clean break basis. The resulting departure from equality, after what was a long marriage of over 30 years, is manifest.

    The basis for the decision was the treatment by the judge of a property in India that the judge decided was in the legal and beneficial ownership of the husband's mother, not the husband. He came to the conclusion that it was a section 25(2)(a) Matrimonial Causes Act resource available to the husband because the husband controlled the property.

    Given the evidence highlighted for this court, that was an inference drawn from the funds used to acquire the property, which appear to have been the husband's, and the apparent use of the property by the husband during any relevant period up to the date of judgment. The question should have been whether the owner would be likely to advance the capital in the Indian property to the husband immediately or in the foreseeable future, but no point is taken on the judge's analysis of control, presumably on the basis that in fact the inferences to be drawn amount to the same, whichever formulation of the test is considered.

    The first ground of appeal amounts to whether such elements of control as there were found to be are sufficient for an inference that the capital would be available to the husband. That does not depend, as appears to be submitted, on whether there is a history of advancement. I agree with the single judge on paper and were the appeal to be limited to this ground, I might be minded to refuse it. That was a matter to be decided on all of the circumstances available.

    There is, however, a second ground relating to the valuation of the Indian property. On its face, opinion evidence appears to have been adduced irregularly or not at all in support of valuation of the property by the wife. This was not as characterised a concession by counsel as to the value in that permission does not appear to have been obtained to adduce the evidence, which appears to be no more than an internet or taxation based assessment that is in the form of a document which is not in the bundle provided to this court. That is not by way of complaint: the husband does not have the document. Furthermore, there was in existence at the time another valuation in a materially different sum. Counsel has very helpfully taken me this morning to page 327 of the appeal bundle and also to page 333, which is a document placed before the judge in the form of a report in respect of the Indian property which highlights the existence of an alternative valuation that was in the hands of the parties in a materially different sum. At the very least, if the judge was admitting valuation evidence both documents should have been considered, but the substance of the ground of appeal is that valuation evidence was not properly adduced at all. The valuation is a very material, if not substantial, factor leading to the determination to which the judge came. It goes to the heart of the redistributing order that he made. Accordingly, there is a real prospect of success in the second ground of appeal.

    Given the factual interrelationship between the issues concerning the Indian property, if I am going to give permission on the second ground, which I do, I will not exclude the first ground, which, when argued on a full basis, may have more apparent merit than it does in this short consideration.

    Accordingly, I grant permission without restriction. The matter should be heard by a full court of three Lord or Lady Justices, one of whom may be a High Court judge; one ought to be a family Lord Justice, but that is not a necessity given the subject matter of the appeal. I have considered with counsel directions relating to the transcript evidence and the disclosure of the two valuations which need to be put into the form of order which is to be submitted through my associate.

    SMITH BERNAL WORDWAVE

Judgment, published: 23/10/2014

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Published: 23/10/2014

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